The case of Nyakudya v O.R. Tambo District Municipality underscores the delicate balance between immigration compliance and the rights of employees under South African labour law.

BACKGROUND

Mr. Nyakudya, a Zimbabwean national, had worked for the Municipality since 2009 on fixed-term contracts. Despite the expiry of his work permits, he continued to render services with the Municipality’s approval. In November 2023, his employment was abruptly terminated on the basis that he lacked valid documentation and had not submitted certain identity records.

THE LEGAL QUESTION

The central issue was whether the Municipality could rely on immigration non-compliance to terminate the contract without adhering to the correct procedures prescribed in labour legislation.

THE COURT’S FINDINGS

The High Court acknowledged that section 38 of the Immigration Act prohibits the employment of foreigners without valid permits and criminalises such conduct. However, it emphasised that the Labour Relations Act (LRA) is the governing framework for workplace disputes, with section 185 conferring the right not to be unfairly dismissed on all employees, irrespective of nationality.

The Municipality’s conduct fell short of these requirements. The termination letter gave no notice (contrary to the Basic Conditions of Employment Act, relevant only for notice), and failed to observe the fair dismissal procedures mandated by the LRA. Paragraph 10 of the judgment confirms that employers must still follow the correct process, even where immigration law is implicated.

OUTCOME

The Court set aside the dismissal as unlawful. Reinstatement was not ordered because the position no longer existed, and no compensation was awarded as it had not been sought. The Municipality was ordered to pay costs.

TAKEAWAY

This case confirms that while immigration compliance is essential, employers cannot bypass the LRA. Even where an employee lacks valid permits, the correct dismissal process must be followed to ensure fairness and legality.

Read Judgment here