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28/11/2017

Sandra Pusch - Take Charge Of Your Responsibilities As An Employer

To repair existing facilities and build new ones, many companies are largely dependent on service providers to assist them. To this end, they may put out a tender and give the job to a company they trust can deal with the issue. It is then the provider's responsibility to manage the respective task with its own resources. If they require specialist advice and the physical presence of foreign consultants, engineers, managers and artisans in South Africa, it is at their own expense. Depending on the duration of intended stay and proposed activities such foreign resource(s) will need permission to stay and work in South Africa, either in the form of a long or short-term authorisation.

As these foreigners will work for a provider, the customer has no obligations, right? Unfortunately, this is not
entirely true. The law stipulates that if an illegal foreigner is found on business premises, it is automatically assumed that such foreigner was employed by the (juristic) person with control over the premises. The onus to prove the contrary rests with the (juristic) person.

But what makes a foreigner illegal? By law it is someone in contravention of the provisions of the Immigration Act. This includes an expired visa and a visa that does not permit the proposed activity, for example full time studies on a work visa or working for company A if the visa is for work at company B.

So, every company that has foreign nationals on their premises (and this also includes the land on which it is situated) has a legal obligation to ensure that the foreigner is not illegally in South Africa. This is regardless of whether or not the company is sponsoring and employing such foreigner. A foreign national found working illegally is subject to arrest, detention, deportation, being ordered to depart, imprisonment or fines.

If found guilty the company, represented by its CEO or the person with final responsibility for personnel matters, would be liable to penalties and potentially imprisonment.

Associated and arguably graver consequences include the reputational damage as well as difficulties in obtaining visas for legitimately needed foreign workers in the future.

In conclusion, it is important for all organisations to be aware of their responsibilities and ensure that their own and outsourced projects and associates are in compliance with law. Ignorance of the law is not an excuse.

www.fragomen.com

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