SA Employers Warned: You Can’t Just Fire Foreign Workers Without Due Process

High Court says fair labour practices apply to all, regardless of immigration status

A recent Eastern Cape High Court ruling has sent a strong message to South African employers: just because a foreign national lacks a valid work visa doesn’t mean you can dismiss them without following due process.

The judgment in Nyakudya v O.R. Tambo District Municipality is being described by legal experts as a wake-up call for businesses employing foreign workers, especially amid increasing immigration scrutiny.

The Case That Sparked It All

At the centre of the ruling is a Zimbabwean employee who had worked for the O.R. Tambo District Municipality under a fixed-term contract since 2009. Although his general work visa expired several years ago, the municipality continued employing him, until suddenly terminating his contract in 2023, citing the lapsed visa.

But the court saw it differently.

Despite acknowledging that employing someone without a valid visa violates Section 38 of the Immigration Act, the High Court ruled the dismissal unlawful, stating that the worker’s constitutional right to fair labour practices was still valid.

No reinstatement was granted due to practicality, but the court made it clear: labour rights don’t disappear with a visa.

Employers Must Follow Labour Law, Visa or Not

Legal experts Nivaani Moodley, Jamie Jacobs, and Bianca Rutherfoord-Jones from Webber Wentzel say the ruling illustrates the tricky balance between immigration enforcement and labour law compliance.

“The message is simple,” they said. “You cannot use a lapsed visa as a shortcut to dismiss someone. Fair procedure still applies.”

Their advice? Employers must regularly verify visa statuses and support foreign staff with renewals or legal guidance when needed. And if dismissal is necessary, it must follow the Labour Relations Act—not just an email pointing to an expired document.

Constitutional Protection for All Workers

The court relied on prior case law (Discovery Health v CCMA), reaffirming that immigration breaches don’t void someone’s fundamental rights at work. In other words, even undocumented workers in South Africa are shielded by labour law protections.

This comes at a time when growing anti-immigrant sentiment in some sectors has seen calls for tighter controls, but courts are reminding employers that the Constitution takes precedence.

Legal Risk and Public Accountability

Aside from moral and legal obligations, there’s also the financial risk: unfair dismissals can lead to lawsuits, reputational damage, and penalties. In this case, the municipality was ordered to foot the legal bill, despite avoiding compensation.

Had the employer followed due process—or better yet, helped renew the visa, things might have ended differently.

A Cautionary Tale for South African Employers

If you’re an employer in South Africa hiring foreign nationals, it’s not just about having the right paperwork. It’s about treating workers, regardless of nationality with fairness, dignity, and respect for their rights under the law.

Failing to do so won’t just hurt your workforce, it could land you in court.

{Source: BusinessTech}

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