With ZEP’s upcoming expiration and grace period coming to an end as of the 30 June 2023, there appears to be much confusion about what is expected from the employer.
We have outlined in a previous article (links provided at the bottom of the article) that three ultimatums should be issued to employees (holding/in possession of ZEPs) to allow those employees a reasonable opportunity in which to make applications for alternate paperwork, which may allow those employees to reside and work within the Republic of South Africa legally.
What will happen to ZEP holders who fail to comply?
It should be borne in mind that even in the event of the employees holding ZEPs not complying with the ultimatums, this does not amount to insubordination; for an employee to be placed in a disciplinary enquiry for insubordination, the instruction must be considered reasonable. As it stands it is not reasonable to expect a ZEP holder to make an application for alternate paperwork. In many cases, there is no other viable permit/visa/asylum available to such a person/employee along with the permit only expiring 30 June 2023.
It should be understood that an employer commits a criminal act by employing or keeping in his/her employ an employee who is illegal in the eyes of the Immigration Act (ie. possessing no legal documentation which permits residence or working within the Republic of South Africa), South African Police Service (SAPS) appears to be clamping down on businesses who have in their employ an employee(s) who possess no valid documentation – resulting in the arrest of both the ‘illegal’ employee as well as the employer, subject to substantial fines imposed on the employer and the threat of deportation of the employee.
ZEP Holders vs Foreign Nationals
A distinction should be drawn between foreign employees that fall under the ZEP, and those without valid documentation legalising their stay and approval to work in South Africa. For ZEP workers, the purpose of the ultimatum process is to make employees aware of the imminent expiry of their permits, allowing them to work in South Africa legally. They are responsible before the expiry date to obtain valid permits and/or visas to be considered legal and employable, failing which their employment will be terminated through due process.
Where a foreign employee does not fall under the ZEP (i.e. non-Zimbabwean foreign national), the employee must have a valid work permit and/or visa. Without a valid permit and or visa and or on expiry of any such documentation, the employee is considered illegal and legally unemployable. This leaves both the employer and employee criminally culpable, and no ultimatum and or documentation indicating that the employee is in the process of obtaining their papers negates such culpability and or suspends the illegality of the employment of the such employee. The employee should be placed in an incapacity inquiry without delay, where through fair procedure, the employment relationship is terminated.
The current situation
There appears to be no extension of the ‘grace period’ given to ZEP holders whose documentation expired on or after December 2021, meaning the 30 June 2023, as it stands, is the cut-off date for all ZEP holders.
We strongly advise that employers begin preparations for the inevitable. Further, it is important to understand that as of 1 July 2023, all ZEP holders will become illegal immigrants within the Republic of South Africa.
This means that from the 1 July 2023, any company that employs ZEP holders can no longer permit legal employment and must follow those steps, as already laid out in our previous article, to ensure compliance with the Immigration Act and avoidance of criminal proceedings in the personal capacity of the business owner.
Please familiarise yourself with latest legal compliance procedure. Read more: Zimbabwean exemption permit (ZEP) – status of Zimbawean employee’s in the republic of South Africa
Employers ‘Exit Strategy’ in respect of Zimbabwean Exemption Permit Holders
Zimbabwean Exemption Permit (ZEP) Status of Zimbabwean employees
