Warning to anyone living in estates and complexes in South Africa employing a domestic worker
Homeowners’ associations and bodies corporate cannot act as immigration authorities when it comes to undocumented or illegal workers in estates and complexes, but residents could still land in hot water.
This is the view of community schemes legal expert at Van Deventer Dowlath & Marx Incorporated, Johlene Wasserman, who warned of the exposures in law.
South Africa has experienced a swell of anti-immigrant sentiment in 2026, with multiple protests, marches and government-led blitzes targeting illegal foreign workers in the country.
The Department of Employment and Labour (DEL) has also come out with particularly hard lines on the matter, with coming legislation—the Employment Services Amendment Bill—seeking to penalise employers who hire these workers.
This is extends to private households, where threats of R100,000 fines have been made against employers who are caught hiring undocumented workers—and escalating from there.
According to Wasserman, this has presented a legal minefield for community schemes, complexes and residential estates where households might employ such domestic workers or contractors.
She stressed that South Africa’s law makes it clear that such schemes may only control access, and that this must be done through non-discriminatory rules and within the bounds of the country’s regulations.
There are no grey areas, she warned.
“Scheme directors and trustees have a strict fiduciary duty to enforce rules consistently for residents and service providers alike,” she said.
“And selective, arbitrary, or discriminatory rule enforcement is going to create serious legal vulnerabilities for community schemes.”
It’s fundamentally a matter of clean, lawful governance, with Wasserman emphasising that estates are not immigration police.
“While HOAs have the authority to regulate who enters an estate, that power has to be exercised strictly within the limits of the law. Estates may not step into the shoes of statutory law enforcement.”
This means that, while estates may request documentation—such as IDs, passports and work permits—to determine access to the community, they may not enforce other laws.
This includes nixing things like detaining undocumented workers, profiling them, harassing them and performing things like “immigration status checks” .
Wasserman outlined what is and is not permitted:
What estates are allowed to do:
- Implement reasonable, security-led access control policies.
- Request standard proof of identity such as passports, valid visas, asylum permits, or verification of employment.
- Require legitimate identification prior to issuing access credentials or biometric clearance.
- Apply access rules consistently to all workers, irrespective of nationality or origin.
What estates are not allowed to do:
- Act as immigration officers or perform immigration status checks.
- Confiscate personal identification or legal documents.
- Detain, interrogate, or harass workers at security gates.
- Engage in racial profiling or selective enforcement.
Residents face fines and penalties
South Africa’s Immigration Act strictly prohibits the employment of illegal workers, and it is an offence for employers to knowingly hire undocumented staff.
Penalties for knowingly violating the Act include fines or a prison sentence, which can escalate depending on the number of offences.
The Act does not, however, assign any enforcement duties to residential community schemes.
Wasserman said this means that a penalty doesn’t automatically follow whenever an estate questions a worker’s documents.
She said proper legal processes have to be followed.
Any community schemes that take it upon themselves to act as enforcers in this way also open themselves up to other legal issues.
Notably, under the Protection of Personal Information Act (POPIA), estate protocols have to respect human dignity and privacy rights.
“Access measures must focus on legitimate security risks, and be handled with fairness and professional respect,” Wasserman said.
“If an estate doesn’t handle people’s personal information properly, the Information Regulator may investigate and tell it what needs to be corrected.”
More serious cases can lead to a fine, a damages claim or, for certain offences, criminal charges. At the extreme end of the scale, POPIA allows for an administrative fine of up to R10 million.
Wasserman said there is not yet any direct case law regarding illegal workers in estates.
However, core governance principles apply. This applies to any workers working in the scheme, including domestic workers and contractors.
“The HOA is entitled to ask for proof that they are lawfully entitled to work there. Checks like these form part of a reasonable and consistently applied access-control policy,” she said.
Immigration enforcement, however, is solely the responsibility of the Department of Home Affairs and the South African Police Service—never an HOA or estate.
The legal expert said that every HOA should adopt a written policy for contractor and worker access that aligns with their roles and operates within the bounds of the law.
“By focusing on sound governance and never overreaching into immigration policing, HOAs protect both their security and their legal standing,” she said.
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