Warning for construction firms flouting immigration regulations

FOLLOWING the George construction disaster, in which media reports claimed that several of the workers killed were illegal foreign nationals, construction firms have been warned that deliberately flouting immigration laws or occupational health and safety regulations could incur fines, imprisonment and reputational damage.

Gerhard Geyser, Director at Legricon, an occupational health, safety and environmental management compliance specialist and consultant to the Master Builders Association North (MBA North), said: “The Department of Employment and Labour has not made any official statements regarding the causes or liabilities associated with the George construction collapse that occurred in May 2024. Any discussions or speculations surrounding the incident are currently based on assumptions. The collapse is still under investigation by relevant authorities and statements on potential causes or liabilities are yet to be confirmed.”

However, he noted: “Anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act, No. 13 of 2002, commits an offence. On conviction, the employer is liable to a fine of up to R40 000 or imprisonment for a period not exceeding one year. For a second offence, the penalty increases to a fine of up to R80 000 or imprisonment for up to two years. For a third or subsequent offence, the employer faces imprisonment of up to five years without the option of a fine.”

These escalating penalties underscore the seriousness with which South African law treats violations related to employing illegal foreign nationals, Geyser said.

“The Department of Home Affairs has actively pursued employers who fail to comply with these regulations. We have all seen the media reports of employer representatives such as construction managers being arrested in this regard,” he said.

Hiring illegal foreigners can also impact brand reputation and engagement with local communities, he noted.

“There is growing scrutiny from government authorities, the media, and the public on businesses that circumvent labour laws. Companies found employing illegal workers may face penalties, including hefty fines or jail time, as well as damage to their reputation. Negative publicity can lead to distrust among clients, investors, and potential business partners. South African firms that depend on local communities for their labour may also find that their relationships are strained if they are perceived to be prioritising foreign workers over local employment opportunities,” Geyser added.

“Local communities, especially in areas with high unemployment rates, may view the employment of undocumented foreign workers as an unfair practice. Community backlash can affect a company’s standing in the region, leading to protests, calls for boycotts, or a loss of local support. Additionally, the employment of undocumented workers may undermine broader efforts to create sustainable and lawful job opportunities for South Africans, exacerbating social tensions.”

Geyser said employers and illegal foreign nationals alike navigate a precarious environment fraught with legal, financial, and social challenges.

He explained: “In the South African legal framework, illegal foreign nationals are generally afforded the same protections and rights as citizens regarding remuneration and workplace-related rights, with the possible exception of medical cover. However, due to their lack of legal status, these workers are highly vulnerable to exploitation. Employers may pay them less than their South African counterparts, delay or withhold payments, or impose unfair wage deductions, knowing these individuals are unlikely to report violations due to fear of discovery or deportation. This leaves illegal foreign nationals financially insecure, with limited legal recourse to challenge such practices effectively.”

Under the Compensation for Occupational Injuries and Diseases Act (COIDA), illegal foreign nationals are not explicitly excluded from coverage. However, Geyser noted that accessing benefits may be challenging due to the requirement of documentation such as proof of employment or wages, which many illegal foreign nationals lack. Consequently, they may bear the cost of medical expenses themselves if injured or ill.

In the event of an accidental injury, illegal foreign nationals are entitled to emergency medical care under the Constitution of South Africa and the National Health Act, ensuring treatment in life-threatening situations. However, he noted: “Visiting public healthcare facilities could expose them to the risk of being reported to the Department of Home Affairs, as healthcare providers are required to ascertain patients' legal status under the Immigration Act.”

“The most severe risk for illegal foreign nationals is arrest and deportation, as their presence violates provisions of the Immigration Act No. 13 of 2002. Section 34 of the Act allows for their detention and deportation if they are found to be in South Africa without the required documentation. This legal vulnerability amplifies the risks they face in accessing basic rights and protections,” Geyser said.

He added that there are several reasons construction firms might take the risk of hiring undocumented foreign workers. He said: “Compared to their South African counterparts, undocumented foreign workers could be willing to accept lower wages and may not require the same benefits or legal protections, such as UIF contributions or pensions. There is also a perception that foreign workers, especially undocumented ones, may be more willing to take on physically demanding or undesirable tasks, sometimes working longer hours and under harsher conditions. Some employers believe that these workers exhibit a stronger work ethic or a greater willingness to comply with labour demands due to their need to secure and maintain employment.”

Ultimately, while employing illegal foreign nationals may offer short-term financial benefits, the long-term risks related to legal challenges, damage to reputation, and strained community relations outweigh these advantages, Geyser said.

In addition, when employers deliberately hire illegal foreign nationals, it is likely indicative of a broader disregard for the safety and well-being of all workers, as well as a lack of adherence to legal obligations, he said.

“This attitude can create unsafe work environments and increase the likelihood of accidents, which may be more pronounced in workplaces where safety regulations are not strictly enforced.”