Estates told they cannot act as immigration police, legal expert warns

Homeowners’ associations and residential estates have been warned not to take on the role of immigration enforcement by targeting suspected undocumented domestic workers, a legal expert has said.

Access control allowed, deciding immigration status is not

Attorney Johlene Wasserman told estates they may enforce security and access rules and may require identification, passports or permits as part of an access-control system. However, she said trustees or security guards must not start deciding what those documents mean or whether someone is legally entitled to be in South Africa.

“The line sits where the estate stops recording what is presented to it and starts adjudicating what that document means,” Wasserman said.

Employers carry the main legal responsibility

Wasserman said the legal responsibility for employing an undocumented worker generally rests with the employer. “If the owner employs the domestic worker, the exposure sits with the owner,” she said.

The Immigration Act prohibits employers from employing illegal foreigners or people whose immigration status does not authorise their employment, and requires employers to make a good-faith effort to establish whether foreign employees are entitled to work. Wasserman noted criminal penalties in the act, saying a first conviction can carry a fine or imprisonment of up to a year, increasing to two years for a second conviction and up to three years for subsequent convictions.

Where estates can and cannot act

An estate may refuse access if a document presented is expired or fraudulent and therefore cannot be relied on for security purposes. But Wasserman warned that checking immigration status against databases, maintaining lists of people classified as illegal, or deciding whether a permit allows someone to perform specific work would encroach on functions reserved for the state.

She also cautioned that accents, appearance or assumptions about nationality cannot constitute reasonable grounds to single someone out.

“Immigration status is determined by home affairs, not by a security guard or trustee,” Wasserman said.

Legal risks for estates that assist undocumented workers

Wasserman said Section 42 of the Immigration Act prohibits aiding, abetting or assisting an illegal foreigner. She said an estate that knowingly issues staff credentials or takes steps to facilitate an undocumented person’s work could create legal risk.

Where an HOA employs a worker or contracts services, the association must ensure those it employs are legally entitled to work and should require contractors and managing agents to warrant that their staff are lawfully employed.

What to do if fraud or immigration concerns arise

Wasserman advised that suspected document fraud should be reported to the South African Police Service, while immigration concerns can be referred to home affairs.