Warning to employers hiring undocumented migrants in South Africa
Fines, imprisonment and reputational damage are just some of the repercussions that firms are likely to incur if found flouting immigration laws or occupational health and safety regulations.
This reminder comes from Gerhard Geyser, Director at Legricon, an occupational health, safety and environmental management compliance specialist and consultant to the Master Builders Association North (MBA North).
The MBA consultant, focusing on the construction sector, explained that many firms hire undocumented foreign workers for short-term financial gains due to an increased willingness to accept lower wages and harsher conditions.
However, these workers very often face exploitation, limited access to healthcare and workers’ compensation, amid the constant risk of arrest and deportation.
This choice puts the employer in the sights of law enforcement, with Home Affairs promising to expand inspections across businesses to act against the employment of undocumented migrants.
Geyser explained that hiring illegal foreign nationals in the South African construction industry in particular is a risky practice for both employers and workers.
While offering potential short-term financial gains for firms, it presents significant legal, financial, and social challenges.
Anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act is committing a criminal offence punishable by substantial fines and imprisonment, with penalties escalating for repeat offences
- On conviction, the employer is liable to a fine of up to R40,000 or imprisonment for a period not exceeding one year;
- For a second offence, the penalty increases to a fine of up to R80,000 or imprisonment for up to two years;
- For a third or subsequent offence, the employer faces imprisonment of up to five years without the option of a fine.
Geyser said that these escalating penalties underscore the seriousness with which South African law treats violations related to employing illegal foreign nationals.
“The Department of Home Affairs has actively pursued employers who fail to comply with these regulations.
“We have all seen the media reports of employer representatives such as construction managers being arrested in this regard,” he added.
Hiring illegal foreigners can also impact brand reputation and engagement with local communities, leading to negative publicity – which can lead to distrust among clients, investors, and potential business partners.
Local communities in high unemployment areas may see the hiring of undocumented workers as unfair, leading to a potential backlash against companies in the form of protests, boycotts, or lost local support.
“South African firms that depend on local communities for their labour may find that their relationships are strained if they are perceived to be prioritising foreign workers over local employment opportunities,” said Geyser.
“Additionally, the employment of undocumented workers may undermine broader efforts to create sustainable and lawful job opportunities for South Africans, exacerbating social tensions,” he added.
Worker risks
Undocumented workers, despite having similar workplace rights to citizens, are highly vulnerable to exploitation.
Due to their precarious immigration status, these workers are often subjected to lower wages, delayed payments, unfair deductions, and demanding/unsafe tasks, with limited recourse due to fear of deportation.
Geyser explained that many employers offer lower wages, delay payments, or impose unfair deductions.
Although entitled to emergency medical care, accessing benefits under the Compensation for Occupational Injuries and Diseases Act can be challenging for these workers due to a lack of documentation.
The fear of being reported to the Department of Home Affairs further complicates their access to healthcare and other basic rights as they face arrest and deportation under the Immigration Act upon reaching out.
However, “while employing illegal foreign nationals may offer short-term financial benefits, the long-term risks related to legal challenges, damage to reputation, and strained community relations outweigh these advantages”.
It also raises concerns about worker safety and legal compliance.
“This attitude can create unsafe work environments and increase the likelihood of accidents, which may be more pronounced in workplaces where safety regulations are not strictly enforced,” warns the specialist.
Overall, Geyser emphasises that employing undocumented migrants in South Africa presents a significant risk for both employers and workers.
While short-term financial gains may be tempting, they are outweighed by the potential for legal penalties, reputational damage, community backlash, and worker exploitation.
Prioritising ethical and legal employment practices is crucial for fostering a sustainable and equitable labour market.
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