KEY LEGISLATION: Section 38 of the Immigration Act 13 of 2002 (Immigration Act).
“38. Employment
(1) No person shall employ —
- an illegal foreigner;
- a foreigner whose status does not authorise him or her to be employed by such person; or
- a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status.
(2) An employer shall make a good faith effort to ascertain that no illegal foreigner is employed by him or her or to ascertain the status or citizenship of those whom he or she employs.
(3) If it is proven, other than by means of the presumption referred to in subsection (5), that a person was employed in violation of subsection (1), it shall be presumed that the employer knew at the time of the employment that such person was among those referred to in subsection (1), unless such employer proves that he or she—
- employed such person in good faith; and
- complied with subsection (2), provided that a stricter compliance shall be required of any employer who employs more than five employees or has been found guilty of a prior offence under this Act related to this section.
(4) An employer employing a foreigner shall—
- for two years after the termination of such foreigner’s employment, keep the prescribed records relating thereto; and
(b) report to the Director-General—
- the termination of such foreigner’s employment; and
- any breach on the side of the foreigner of his or her status.
(5) If an illegal foreigner is found on any premises where a business is conducted, it shall be presumed that such foreigner was employed by the person who has control over such premises, unless prima facie evidence to the contrary is adduced.”