The grace period of ZEPs is ending as of the 30th of June 2023!
We have outlined in a previous article the steps to be taken with 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.
The Criminality of Employing Undocumented Workers
Employers are reminded 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 (i.e. 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.
A distinction should be drawn between foreign employees that fall under the ZEP and those who do not have any 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 and that 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.
Risks, Obligations, and Consequences
Where a foreign employee does not fall under the ZEP (i.e. non-Zimbabwean foreign national), the employee is required to have a valid work permit and or visa. Without such, a valid permit and or visa and or on expiry of any such documentation, the employee is considered illegal and legally unemployable, leaving both the employer and employee criminally in contravention 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 such employee. Such an employee should be placed in an incapacity inquiry without delay, where through fair procedure, the employment relationship is terminated.
At present, there are no extensions of the ‘grace period’ given to ZEP holders whose documentation expired on or after December 2021, meaning the 30th of June 2023, as it stands, is the cutoff date for all ZEP holders and we strongly advise that employers take the necessary action upon to avoid culpability.
Understanding the Implications of ZEP Holders Becoming Illegal Immigrants in South Africa
It is of paramount importance to understand that as of 1 July 2023, all ZEP holders become illegal immigrants within the Republic of South Africa; this means that from the 1st of July 2023, any company employing ZEP holders, who at that time has not complied with obtaining any other valid VISA to allow them to continue residing and or working in the Republic, can no longer permit legal employment. In such instances, the employer must follow fair procedure in terminating the employment relationship by conducting an incapacity inquiry to ensure compliance with the Immigration Act and avoidance of criminal proceedings in the personal capacity of the business owner.
We reiterate that it is not advised to stagger any incapacity inquiries and/or termination of ZEP employees within their workforce in that this poses additional risk to the company as well as the business owner in his/her capacity.
We strongly encourage employers that should you require any assistance regarding the ZEPs, Final Ultimatum and incapacity inquiries or have any queries, kindly contact our Invictus team on 0861 737 263 or your designated consultant.