Samuel Nyakudya v O.R Tambo District Municipality

The applicant, a Zimbabwean national, was granted temporary residence permits allowing him to work in South Africa (initially from 12 March 2012 to 30 April 2014, then from 14 May 2014 to 31 March 2015). He was employed by the respondent as a research assistant from 2009, with multiple contract extensions: a 3-year term (2009-2012), a 5-year contract (2011-2014), yearly rollovers (2014-2017), another 5-year term (2017-2022), and he continued working after March 2022 with the respondent's approval. In November 2023, the respondent terminated his employment contract effective immediately, citing that the contract was unlawful and irregular because his work permit had expired and he failed to provide a South African identity document as requested by the Auditor General. The termination was effected without prior notice or following proper procedures.

• Whether the termination of the applicant's employment contract was unlawful
• Whether an employer can summarily terminate an employment contract with a foreign national whose work permit has expired without following proper labour law procedures
• Whether the applicant is entitled to reinstatement to his former position
• Whether section 38 of the Immigration Act renders a contract of employment with a foreign national without a valid work permit void
• Whether the respondent complied with the notice requirements under the Basic Conditions of Employment Act

1. The termination of the applicant's contract of employment is declared unlawful and is hereby set aside. 2. The respondent shall pay costs of this application on Scale A as contemplated under Rule 67A read with Rule 69 of the Uniform Rules of Court.

The binding legal principles established are: (1) Section 38(1) of the Immigration Act, which prohibits employment of foreigners without valid work permits, does not render such contracts of employment void or limit the constitutional right to fair labour practices under section 23 of the Constitution. (2) An employee's status as an illegal foreigner or holder of an expired work permit does not entitle an employer to summarily dismiss the employee without following proper labour law procedures. (3) Termination of employment, even of a foreign national without valid work authorization, must comply with the notice requirements under section 37 of the Basic Conditions of Employment Act and the fairness requirements under section 185(a) of the Labour Relations Act. (4) Failure to provide statutorily required notice before termination constitutes an unfair labour practice and renders the termination unlawful. (5) The duty imposed on employers by the Immigration Act to ascertain citizenship status does not absolve them from their labour law obligations when terminating employment.

The court made observations about the practical implications of allowing employers to avoid labour law obligations based on immigration status, noting that this could lead to exploitation where unscrupulous employers deliberately employ illegal foreigners and then refuse to pay remuneration or honor contractual obligations by relying on the invalidity of the contract. The court also noted that the respondent's acknowledgment that the contract extensions resulted from "an oversight of its personnel" contradicted its position, as the Immigration Act imposes a duty on employers to ascertain citizenship status. The court observed that terminating the employment does not rectify the oversight from improper extension. The court also commented that while reinstatement is the primary remedy under section 193 of the LRA, compensation may be awarded when reinstatement is not feasible, though this was not sought in the motion proceedings before the court.

This case is significant in South African labour and immigration law as it clarifies that the constitutional right to fair labour practices under section 23 of the Constitution applies to all employees, including foreign nationals working without valid permits. It reinforces that employers cannot use an employee's illegal immigration status as a basis for summary dismissal without following proper labour law procedures. The judgment balances the prohibitions in the Immigration Act against fundamental labour rights, ensuring that vulnerable foreign workers are not exploited by unscrupulous employers who might otherwise use immigration status to avoid their labour law obligations. The case emphasizes that even where employment is technically unlawful under the Immigration Act, termination must still comply with the Basic Conditions of Employment Act and Labour Relations Act requirements for notice and fair procedures.