If you employ foreign nationals in South Africa, a document that looks real isn’t proof that someone is allowed to work for you. When an immigration document turns out to be fake or invalid, the fallout doesn’t stop with the employee. Your business can end up in trouble too.

Hiring foreign nationals is perfectly legal as long as the immigration requirements are met. But the law puts the responsibility on you, the employer, to make sure the people on your payroll are entitled to work here. The biggest mistake we see is taking a passport, visa or permit at face value without checking that it’s genuine and that it actually allows the person to work.

So, what happens if you unknowingly hire someone on fraudulent papers? Can you be held liable? And what can you do to protect yourself? Here’s what every employer should know.

What the law says

Two laws do most of the work here:

  1. Immigration Act 13 of 2002 and
  2. Employment Services Act 4 of 2014.

 Section 38 of the Immigration Act says you may not employ:

  • an illegal foreigner,
  • a foreign national whose status doesn’t allow them to work for you specifically, or
  • a foreign national in a role or on terms their status doesn’t permit.

Section 38(2) adds that you must make a good-faith effort to confirm that your employees aren’t illegal foreigners and to check their status or citizenship. Section 8(1) of the Employment Services Act backs this up: you can’t employ a foreign national until they produce a valid work permit issued under the Immigration Act.

The key point is that it isn’t enough to know someone is allowed to be in the country. You need to know they’re allowed to work. A visitor’s visa, for instance, doesn’t automatically let someone take a job.

What if the documents turn out to be fake?

Picture this. A new hire hands over a passport and what looks like a valid work permit. You copy everything, complete their file and they start work. Months later, an inspection or immigration check reveals the permit is fraudulent.

 You may honestly have believed everything was in order, but that doesn’t automatically clear you. Section 38(3) creates a presumption that the employer knew the person’s status was unlawful. To rebut it, you’d need to show that you hired in good faith and made a genuine effort to establish the person’s status and right to work. The Act also demands stricter compliance from employers with more than five employees, and from those with a previous conviction under the Act.

This is why filing a copy of someone’s documents isn’t enough. You need to be able to show what you did to check them. A real verification process, the correspondence around it, and any confirmation from the authorities can all become important evidence if your compliance is ever questioned.

What penalties could you face?

Knowingly employing an illegal foreigner or employing a foreign national in contravention of the Act, is an offence under section 49(3).

On conviction:

  • First offence: a fine or up to one year in prison.
  • Second offence: a fine or up to two years.
  • Third or later offence: up to five years in prison, with no option of a fine.

Section 49(6) also covers failing to comply with certain obligations under sections 38 to 46, with a fine or up to five years’ imprisonment. Which provision applies will depend on the charge and the circumstances.

Compliance also doesn’t end on day one. Work authorisation has to stay valid for as long as the person works for you. A permit that expires, gets withdrawn, or no longer covers the work being done creates fresh risk.

How to verify your foreign employees’ documents

This is the part that matters most. Don’t wait for a Home Affairs or Department of Employment and Labour inspection to find out something’s wrong. Build verification into recruitment and onboarding and repeat it periodically.

 Step 1: Get the originals

Before the person starts, ask for their original passport and immigration documents. Depending on their status, that could be a work visa, a permanent residence permit, a refugee or asylum-seeker document, or other official proof of their status and right to work. Different categories come with different rights and conditions, so don’t treat everyone the same.

Step 2: Make sure the documents belong to the person in front of you

Check that:

  • their names match the passport,
  • the passport number and personal details line up across the documents,
  • the photo and identifying details match the person you’re hiring, and
  • there are no obvious alterations, odd endorsements or inconsistencies.

 Watch for spelling mistakes, strange formatting and dates that don’t add up. But remember that a document can look perfect and still be fake, so a visual check on its own isn’t verification.

Step 3: Confirm the status actually allows employment

Someone can be in South Africa legally without having permission to work. Establish:

  • whether the visa or status is valid,
  • whether it specifically permits employment,
  • whether your business and the position fall within its conditions,
  • whether there are restrictions on the type of work, the employer or the location, and
  • whether it has expired, been withdrawn or become invalid.

 A person might be authorised to work for one employer but not another. Never assume that permission to live here means permission to work here.

 Step 4: Ask Home Affairs to verify

If you have any doubt about a visa, permit or document, get confirmation from the authorities. The Retail Motor Industry Organisation published these contact addresses after engaging with Home Affairs:

 You can also go to your nearest Home Affairs office. When you send a request, include the relevant identifying details and document copies, and use a secure channel. Keep proof of the request and of any reply. If nobody responds, follow up and record those attempts too. Silence is not confirmation that a document is valid.

Step 5: Keep proper records

Immigration Regulation 35 sets out what you must hold for each foreign employee:

  • a certified copy of their passport showing their personal particulars,
  • a copy of their visa or permanent residence permit,
  • proof of the capacity in which they’re or were employed, and
  • a copy of their IRP5 or certificate of earnings and their job description, as applicable.

 Section 38(4) says these records must be kept for two years after the employment ends. Store them securely, make sure you can find them when needed, and update them whenever the person’s immigration documents change.

Step 6: Track expiry dates and renewals

Verification isn’t a once-off exercise. Someone can have valid authorisation when you hire them and lose it later. Keep a register of your foreign employees that records:

  • full name,
  • passport number,
  • type of visa or authorisation,
  • issue and expiry dates,
  • any employer or position restrictions,
  • the date you requested verification, and
  • the outcome, with supporting evidence.

 Set reminders well before expiry so the employee has time to deal with renewal. If their authorisation does lapse, act immediately to find out whether they’re still entitled to work.

What to do if you discover fake documents

This is serious, so don’t rush into a decision, and don’t pretend you haven’t noticed.

  1. Establish the facts: Get confirmation from Home Affairs or a qualified immigration specialist that the documents are fraudulent, invalid or don’t authorise employment.
  2. Secure the evidence: Keep copies of the submitted documents, application forms, contracts, correspondence and any verification requests and replies.
  3. Get professional advice: Find out what your obligations are and how to handle the person’s continued employment.
  4. Deal with the employment relationship: You can’t knowingly keep employing someone who isn’t authorised to work here. But the right process depends on the facts. If the employee deliberately submitted fake papers, disciplinary action for dishonesty or misrepresentation may be appropriate. If they simply don’t have valid authorisation, you may need to look at termination for incapacity, with a fair process – CONTACT COFESA TO ENSURE YOU STILL FOLLOW FAIR & CORRECT PROCEDURES
  5. Consider reporting: Section 38(4) requires employers to report the termination of a foreign employee’s employment, and any breach of their immigration status, to the Department. Get guidance on the proper procedure, especially where fraud is suspected.

Can you dismiss someone for having fake documents?

Employers need to be clear on whether they are dealing with misconduct or incapacity. Lacking valid work authorisation doesn’t automatically mean the employee committed misconduct.

  • If they knowingly handed over a fraudulent permit to get the job, that can be dishonesty and misconduct.
  • If they had valid authorisation that later expired and couldn’t be renewed, you’re more likely looking at incapacity.
  • If it turns out they never had authorisation, you’ll need to look into what they knew and how they acted.

In a labour-law alert dated 2 March 2026, Cliffe Dekker Hofmeyr discussed a CCMA matter involving employees without valid work permits. Their commentary noted that where there’s no lawful basis to keep employing the person, an incapacity process will generally be needed. Dismissal for misconduct is still possible if the employee deliberately misled the employer, for example by knowingly submitting fraudulent documents.

Either way, don’t just dismiss someone without working out the right grounds and following a FAIR PROCEDURE. Foreign nationals don’t lose their protection under South African labour law simply because their immigration papers are irregular.

“I didn’t know” isn’t a safe defence

The most common mistake is assuming you can’t be blamed because the employee supplied the fake documents. The Act expects you to make a good-faith effort to establish your employees’ status. If you can’t show you took reasonable verification steps, it’ll be hard to rely on the good-faith defence in section 38(3). That matters even more if you have more than five employees, where the Act expects stricter compliance.

So, review your recruitment and onboarding process, and make foreign-national verification a standard step.

A quick compliance checklist

Use this to spot gaps in your current process:

  • Obtain and inspect the original passport and immigration documents.
  • Confirm the documents belong to the person presenting them.
  • Establish that the employee is legally entitled to work in South Africa.
  • Confirm the authorisation covers employment with your business and in that role.
  • Request verification from Home Affairs where needed.
  • Keep the prescribed records, including certified passport copies and immigration documents.
  • Keep proof of every verification request and response.
  • Maintain a register of foreign employees and their status.
  • Monitor visa and permit expiry dates.
  • Deal with expired, withdrawn or invalid authorisation straight away.
  • Follow the correct employment process if someone has submitted fraudulent documents.
  • Report terminations and relevant status breaches as required.

Final thoughts

Employing foreign nationals is not a problem in itself. Employing someone who isn’t legally authorised to work is, and it can expose your business to serious legal and operational risk. A document that looks genuine doesn’t protect you. What protects you is actively checking it, confirming the person’s right to work, and keeping good records.

Don’t wait for an inspection, a Home Affairs investigation or a dispute with an employee to look at your paperwork. Verify at the start, keep monitoring, and you’ll avoid a lot of unnecessary trouble.

For questions or advise, please contact the Cofesa national helpline:
011 679 4373 | 082 888 9516 | helpline@cofesa.co.za

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Disclaimer: The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Readers are advised to always consult with a Labour Law Practitioner before acting on the information. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages.