Bodies corporate regularly employ cleaners, gardeners, security personnel and maintenance staff, either directly or through contractors. But what happens when an employee does not have valid immigration documentation? Can the body corporate be held liable? Must the employee be dismissed immediately? And what if the problem lies with delays at the Department of Home Affairs rather than the employee?
The answer requires balancing immigration compliance, fair labour practices and responsible scheme management.
1. What Does the Law Permit?
Section 4(a) of the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”) empowers a body corporate to appoint employees and agents.
However, section 38(1) of the Immigration Act 13 of 2002 prohibits employing:
· An illegal foreigner;
· A foreign national whose immigration status does not authorise employment by that employer; or
· A foreign national employed contrary to the conditions of their immigration status.
Section 38(2) requires employers to make a good-faith effort to ascertain employees' citizenship or immigration status. The Employment Services Act 4 of 2014, particularly section 8, further regulates the employment of foreign nationals.
Importantly, employing a foreign national is not unlawful simply because that person is not South African. The question is whether the individual is legally authorized to undertake the particular employment.
2. What About Expired Permits and Home Affairs Directives?
An expired permit does not necessarily mean an employee is unlawfully employed. The Department of Home Affairs periodically issues immigration directives extending permits or granting concessions to foreign nationals affected by administrative delays.
For example: Immigration Directive No. 7 of 2026 extends temporary concessions for qualifying foreign nationals awaiting certain visa, waiver and appeal outcomes until 30 June 2027. Existing visa conditions continue to apply.
Immigration Directives Nos. 20 and 21 of 2025 extend the Lesotho and Zimbabwean Exemption Permits (“LEP” and “ZEP”) respectively until 28 May 2027.
Recognized refugees and qualifying asylum seekers may also enjoy employment rights under the applicable refugee and immigration legislation.
3. What Are the Consequences for the Body Corporate?
Section 49(3) of the Immigration Act criminalizes knowingly employing a foreign national contrary to the Act. A first conviction may attract a fine or imprisonment of up to one year, with increased penalties for repeat offences.
Section 38(3) also creates a rebuttable presumption of employer knowledge where unlawful employment is established. The employer must demonstrate good faith and compliance with its verification obligations.
However, the consequences are not limited to immigration penalties. An improperly handled dismissal may expose the body corporate to proceedings before the CCMA or Labour Court, compensation claims, legal costs and disruption to essential services.
These are ultimately consequences borne by the scheme, potentially requiring expenditure from funds contributed by owners. Trustees must therefore avoid both knowingly unlawful employment and unnecessarily exposing the scheme to employment disputes.
Practically, a body corporate’s best mitigating option is to take steps which are objectively reasonable in ascertaining the actual legal position of the employee.
4. Can an Employee Be Dismissed Simply Because Their Permit Has Expired?
This is not automatic. Sections 185 and 188 of the Labor Relations Act 66 of 1995 (“LRA”) protect employees against unfair dismissal and require both substantive and procedural fairness.
In Discovery Health Ltd v CCMA and Others,[1] the Labor Court confirmed that foreign nationals without the necessary work authorization remain employees entitled to protection under labour legislation.
More recently, in Nyakudya v O.R. Tambo District Municipality,[2] the Eastern Cape Division of the High Court (Mthatha) held that the absence of valid work authorization did not automatically justify summary termination. The employer remained obliged to follow proper procedures. The dismissal was declared unlawful and set aside, although reinstatement was not ordered.
Consider a gardener who has worked diligently at a scheme for several years, supported dependents and contributed to the economy. His permit expires while a renewal application remains unresolved. Should the body corporate immediately dismiss him, despite his attempts to regularize his status?
The answer depends on the circumstances. Trustees should investigate the employee's immigration position, consider applicable concessions, afford an opportunity to respond and assess lawful alternatives.
Where employment is genuinely prohibited, fairness cannot justify its continuation. However, the existence of a lawful reason to terminate employment does not dispense with the requirement to follow a fair process.
5. The Systemic Problem: Home Affairs and Administrative Delays
Immigration irregularities do not always arise from deliberate non-compliance. South Africa's immigration system has experienced significant processing backlogs, administrative delays and difficulties finalising applications and appeals.
In August 2026, Parliament reported that, as at 28 July 2026, Home Affairs had 21,847 pending immigration appeals, of which 13,148 were overdue.
The repeated extension of immigration concessions further illustrates the consequences of these administrative difficulties.
This raises a broader question of fairness. An employee may be working honestly, supporting a family and contributing economically, yet remain caught in an administrative process beyond their control. Dismissing such an individual without investigating the circumstances risks punishing the employee for failures within the very system responsible for determining their status.
The issue is therefore often more systemic than it first appears. This does not excuse unlawful employment. It does, however, reinforce the importance of distinguishing genuine immigration non-compliance from circumstances where the law itself provides temporary protection or continued authorization.
6. What if the Body Corporate Uses an Independent Contractor?
Many schemes outsource cleaning, gardening and security services. Ordinarily, the contractor, as employer, bears the primary responsibility for ensuring that its employees are lawfully authorised to work.
However, appointing a contractor does not automatically eliminate every risk for the body corporate, particularly where the arrangement disguises an employment relationship or the body corporate knowingly participates in unlawful conduct.
Trustees should ensure that service agreements contain appropriate immigration and labour-law compliance provisions and require reasonable assurances that workers are lawfully employed.
7. What About the Proposed Legislative Amendments?
The Employment Services Amendment Bill [B16–2026], introduced in May 2026, proposes tighter regulation of foreign-national employment.
The proposed amendments include provisions for sectoral employment quotas, local recruitment requirements, stronger enforcement mechanisms and additional compliance obligations. These provisions a movement towards greater employer accountability.
For bodies corporate, this makes proper employment records, contractor oversight and immigration verification increasingly important.
8. What Should Trustees Do?
Before appointing, retaining or dismissing a foreign national, trustees should:
· Verify the employee's immigration status and entitlement to undertake the particular employment.
· Consider applicable Home Affairs directives, exemption permits and pending applications.
· Maintain proper records and monitor permit expiry dates.
· Require appropriate immigration-compliance undertakings from contractors.
· Investigate suspected irregularities and follow fair labour procedures before dismissal.
· Obtain legal advice where immigration compliance and employment rights appear to conflict.
Trustees must remember that they are managing both a legal entity and the funds entrusted to it by owners. Unnecessary litigation, unlawful employment arrangements and avoidable dismissals may all carry financial consequences for the scheme.
Responsible governance demands that a body corporate comply with immigration legislation, but also recognize that employment involves livelihoods, that administrative systems are imperfect and that fair treatment remains a legal obligation.
A decision made too hastily may prove as costly as one made without regard for the law.
Disclaimer: This article is intended for general information and educational purposes only and does not constitute legal, financial, insurance or professional advice. Scheme-specific plans, registered rights, rules, budgets and facts should be considered before liability is allocated or decisions are taken. It is always advisable to contact a specialist, practicing sectional title attorney for legal advice.
About the Author - Razeen Khan is an attorney and managing director at KKS Attorneys Inc., with vast experience in sectional title and community scheme law, wider property law, conveyancing, commercial law, intellectual property law and alternative dispute resolution. He regularly advises trustees, managing agents and owners on sectional title disputes and its many concepts and permutations. His approach is practical and solution-focused, with an emphasis on clear legal interpretation and workable outcomes for parties and clients.
