The Zimbabwean Exemption Permit (ZEP) was implemented by the Department of Home Affairs in 2017 with the aim of regulating the stay of undocumented Zimbabweans in South Africa.

Zimbabweans were offered free temporary work and study permits, valid until December 2021. The validity of these permits was first extended until 31 December 2022 and then again to 30 June 2023. Even though there are pending court cases from various entities against the Department of Home Affairs (DHA), and lots of pressure and push back from various groups, there is no guarantee that Government will change their stance.

After 30 June 2023, unless these ZEP holders have managed to successfully apply for another work permit, they can be deported. However, few would qualify as only those whose skills are listed under the Critical Skills list, which was issued in February 2022 and updated in August 2022, may be granted a critical skills work visa. The DHA has also added to the difficulty to obtain work visas by implementing strict requirements to apply for a general work visa in terms of requiring applications for a certificate and waiver from the Department of Employment and Labour. These requirements also apply to any other undocumented foreign employee who doesn’t have a valid work permit or whose permit has expired.

The law is clear that an employer may not employ a foreigner without a valid work visa. Section 38 of the Immigration Act 13 of 2002, precludes the employment of foreigners who do not have a valid work permit, whilst section 49(3) makes it an offence to knowingly employ a foreigner in violation of the Immigration Act.

Employers are often unsure as to how the issue should be addressed when they discover that they employ a foreigner who is employed in contravention of the Immigration Act. In Discovery Health Limited v CCMA & Others [2008] 7 BLLR 633 (LC), the Labour Court found that foreign employees enjoy the same protections afforded by the Labour Relations Act 66 of 1995 (LRA), regardless of their legal status. This means that an employer is not entitled to simply disregard its obligation to ensure that both procedural and substantive fairness is observed when dismissing an employee who does not have a work permit.

It is therefore important for the employer to ensure that it correctly contextualises the reason for the dismissal and that it follows the correct process. An employer who applies the incorrect ground and consequently follows the incorrect procedure acts in contravention of the LRA, resulting in an unfair dismissal and the risk of having to pay compensation through an adverse award at the CCMA or Bargaining Council.

If you want to know how to mitigate your risk and dismiss your undocumented foreign employees fairly, please don’t hesitate to contact me for assistance.