Nyakudya v O.R Tambo District Municipality

The applicant, Samuel Nyakudya, is a Zimbabwean national who was granted temporary residence and general work permits in South Africa, the last recorded permit expiring in 2015. He had been employed by the respondent municipality as a research assistant since 2009 under a series of fixed-term contracts and extensions, including a five-year term from 2017 to 2022. After the written contract expired in March 2022, the respondent nevertheless allowed him to continue working. In November 2023, the municipality terminated his employment with immediate effect, stating that his employment was unlawful and irregular because his contract had expired, his work permit had lapsed, and he had not provided a South African identity document. The respondent also admitted that the continued extension of his employment occurred due to an oversight by its personnel. The applicant challenged the termination as wrongful, unlawful and constitutionally invalid, and sought reinstatement and costs.

• Whether the respondent's termination of the applicant's employment contract was unlawful and unfair in circumstances where the applicant was a foreign national whose work authorisation had expired.
• Whether an employer may summarily terminate the employment of a foreign national on the basis of illegality under the Immigration Act without complying with labour-law fairness requirements.
• Whether the respondent failed to comply with the notice requirements in section 37 of the Basic Conditions of Employment Act.
• Whether the applicant was entitled to reinstatement despite the respondent's contention that his position no longer existed in the organisational structure.

The court declared the termination of the applicant's contract of employment unlawful and set it aside. The respondent was ordered to pay the costs of the application on Scale A. Reinstatement was not granted.

A foreign national's lack of valid work authorisation does not, by itself, entitle an employer to summarily terminate employment without following lawful and fair labour procedures. Even where employment may contravene the Immigration Act, the employer must comply with the notice and fairness requirements of South African labour law, including section 37 of the BCEA and the right to fair labour practices under section 23 of the Constitution and section 185 of the LRA. Where termination is effected immediately and without proper notice, it is unlawful and liable to be set aside.

The court observed that terminating the employment contract did not cure or rectify the respondent's earlier oversight in extending the applicant's employment while failing to verify his immigration status. It also remarked that reinstatement generally depends on fairness and practicability and that, where reinstatement is not feasible, compensation may be an appropriate alternative remedy under the LRA, although such relief was not sought in this case.

The case affirms in a High Court context that the employment of foreign nationals, even where affected by immigration irregularities, remains subject to South African labour-law fairness standards. It underscores that an employer cannot rely on the Immigration Act alone to summarily terminate employment without complying with the BCEA and LRA. The judgment is significant for reinforcing the constitutional right to fair labour practices for vulnerable non-citizen workers and for placing responsibility on employers to comply with immigration obligations before and during employment.