1. One of the best ways to avoid or minimize ‘march and march’ protests in South Africa, is for all of us to know, understand, appreciate and accept that there is already the Immigration Act 13 of 2002, as amended, which strictly prohibits illegal immigration in South Africa. It would serve the best interests of our country if all of us would genuinely obey the Immigration laws of our country, as well as avoid taking the law into our own hands. Our relevant Law enforcement agencies are already mandated by the Immigration Act 13 of 2002, as amended. What is left is a political will to implement the immigration laws without fear, favour or prejudice. The rule of law is one of the founding values of the Republic of South Africa.
2. Under the rule of law, it has to be acknowledged that the illegal immigrant workers have rights in South Africa. They are in law regarded as employees. Every illegal immigrant worker has the right not to be subjected to unfair labour practice, and/or, not to be unfairly dismissed.
3. Gone are the days when unscrupulous employers used to hire illegal immigrant workers and summarily dismissed them on the pay day. Employers can no longer hire and fire illegal immigrant workers without following a fair procedure and proving that the reason for dismissal is a fair reason. Our judiciary has
fundamentally altered this inhuman mistreatment of illegal immigrant workers.
4. A foreign national who works for another person without a work permit issued under the Immigration Act 13 0f 2002, as amended is an employee as defined by the Labour Relations Act 66 of 1995, as amended [Discovery Health Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR2877/06[2008] ZALC 24; [2008] 7 BLLR 633(LC); (2008) 29 ILJ 1480(LC) (28 March 2008)]. This means that a special defence of lack of
jurisdiction over unfair labour practice dispute or unfair dismissal dispute between illegal immigrant worker and his/her south African employer, is not a valid defence and cannot be upheld.
5. Foreign nationals without valid work permits are not deprived of protection under South African labour legislation [Southern Sun Hotel Interests (Pty) Ltd iro Southern Sun Waterfront Hotel v CCMA & others [2011] 10 BLLR 1012(LC)].
6. However, While the illegal immigrant workers are not deprived of their legal protection under South African labour laws, you employ them at your own risk because it is a criminal offence under the Immigration Act 66 of 2002, as amended, for any person to employ a foreign national without a valid work permit, which criminal offence is punishable by a fine or imprisonment. Likewise, the employer may fairly dismiss its South African employee who unlawfully authorises foreign national entry-allowing entry without valid visa-endorsing work permit in violation of the Immigration Act 13 of 2002, as amended [Maboya v Department of Home Affairs and Others (J383/2022) [2025] CALCJHB 97(11March2025)]. Section 42 (1) of this Act provides that, subject to this Act, and save for necessary humanitarian assistance, no person shall aid, abet, assist, enable or in any manner help an illegal foreigner to get employment or do business in South Africa.
Author: Advocate MD Maluleke, Johannesburg, Wednesday, 1 July 2026