IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Case No.: 862/2024
Reportable : Yes / No
In the matter between:
SAMUEL NYAKUDYA Applicant
and
O.R TAMBO DISTRICT MUNICIPALITY Respondent
JUDGMENT
Cengani -Mbakaza AJ
Introduction
[1] On 12 Mar ch 2012, the applicant, a Zimbabwean national was granted a
temporary residence permit allowing him to reside in the Republic of South Africa
(RSA) and seek employment in the category of general work as provided for under
the Immigration Act (the Immigrati on Act).1 The permit’s expiry date was 30 April
1 Section 10 of the immigration Act 13 of 2002 read with the provisions of regulation 18 (4) of the
Immigration Regulations of 2014.
2014. After the expiration of the said permit the applicant was granted a second
general work permit commencing on 14 May 2014 and expiring on 31 March 2015.
[2] The applicant was employed as a research assis tant from 2009, with his
contract being:
(a) Initially a 3 -year term (2009 -2012).
(b) The initial contract was replaced by a 5 -year contract (2011 -2014).
(c) The contract was rolled over for 1year -periods (2014 -2015, 2015 -2016,
2016 -2017).
(d) There was an other extension of a 5 -year term from 2017 -2022.
(e) After the last term expired in March 2022, he continued working with the
respondent’s approval.
[3] In November 2023, the respondent terminated applicant’s employment
contract due to allegations of its u nlawfulness and irregularity.
The relief sought
[4] The applicant is now seeking an order declaring the respondent’s decision to
terminate his contract of employment wrongful, unlawful, and constitutionally invalid.
In addition, the applicant is seeking reinstatement of his position of employment
which he had obtained before the termination of the contract. Furthermore, the
applicant seeks a cost order against the respondent. The respondent opposes the
application.
[5] The applicant contests the sudden t ermination of his contract of employment
without notice or proper procedures being followed. His argument hinges on the
concept of legitimate expectation and the alleged failure to follow due processes in
terminating the employment relationship.
[6] The r espondent acknowledges that despite the written contract expiring on 31
March 2022, it permitted the applicant to continue working. The respondent asserts,
however, that the contract was terminated due to its irregular and unlawful nature,
specifically bec ause the applicant’s work permit had expired at the time of
employment. These reasons are cited in a letter dated 30 November 2023
(termination letter) addressed to the applicant. Furthermore, at paragraph 14 of it
answering affidavit, the respondent ackno wledges that the applicant’s contract was
extended due to an oversight of its personnel. Therefore, so the averment goes, the
termination of contract was necessary to rectify the position.
Issues
[7] The issues up for debate and the determination by the c ourt are whether the
termination of the applicant’s contract was unlawful and whether he is entitled to be
re-instated in his initial position.
Discussion
[8] Our law prohibits the employment of a foreigner without a valid work visa.
Section 38 of the Immigration Act, the provision that I was referred to by Mr Ngumle
on behalf of the respondent provides that:
‘(1) No person shall employ‒
(a) an illegal for eigner;
(b) a foreigner whose status does not authorise him or her to be
employed by such person; or
(c) a foreigner on terms, conditions or in a capacity different from those
contemplated in such foreigner’s status.
(2) An employer shall make a good e ffort to ascertain that no illegal
foreigner is employed by him or her to ascertain the status or citizenship of
those whom he or she employs.
(3) If it is proven, other than by other means of the presumption
referred to in subsection (5), that a person w as employed in violation of
subsection (1), it shall be presumed that the employer knew at the time of
employment that such person was among those referred to in subsection (1),
unless such employer proves that he or she‒
(a) employed such person in goo d faith; and
(b) complied with subsection (2), provided that a stricter compliance
shall be required of any employer who employs more than five employees or
has been found guilty of a prior offence under this Act related to this section.’
[9] The emplo yment of an illegal foreigner in violation of the Immigration Act
constitutes a criminal offence and therefore punishable. Section 49 (3) of the
Immigration Act provides:
‘Anyone who knowingly employs an illegal foreigner or a foreigner in violation
of thi s Act, shall be guilty of an offence and liable on conviction two a fine or to
imprisonment not exceeding one year, provided that such person’s second
conviction of such an offence shall be punishable by imprisonment not
exceeding to years or a fine, and t he third or subsequent conviction of such
offences by imprisonment not exceeding three years without the option of a
fine.’
[10] Mr Ngumle raised a sound and supported argument that if a person’s
employment is prohibited by law, it is not possible for such a person to perform his
duties lawfully.2 Despite this compelling argument, counsel overlooked the legal
principle which entails that an employer may terminate an employee’s contract due
to legal incapacity, provided that the dismissal is fair and in acco rdance with the
labour laws and the Constitution3. Section 185(a) of the Labour Relations Act4 (LRA)
provides that every employee has a right not to be unfairly dismissed. The laws
governing fair labour practice apply to all individuals regardless of their legal status.
Mr Ntayiya on behalf of the applicant, referred to Discovery Health Limited v
CCMA5 (Discovery Health Limited), a case which confirmed this position.
[11] Although the court in Discovery Health Limited6 was dealing with a review
application , its points of discussion find relevance in the mater before me. In
Discovery Health Limited, the court held:
2 Defining Fairness in Dismissals unauthorized Foreign Nationals by K Newal (PER/PELJ 220 (23).
3 Section 23 of the Constitution, Act 108 of 1996 .
4 66 of 1995.
5 [2008] BLLR 635 (LC).
6 Ibid.
‘30 There is a sound policy for adopting a construction of s 38 (1) that does
not limit the right to fair labour practices. If s38(1) were to ren der a contract of
employment concluded with a foreign national who does not possess a work
permit void, it is not difficult to imagine the inequitable consequences that
might flow from a provision to that effect. An unscrupulous employer,
prepared to risk criminal sanction under s 38, might employ a foreign national
and at the end of the payment period, simply refuse to pay the remuneration
due, on the basis of the invalidity of the contract. In these circumstances, the
employee would be deprived of a remed y in contract…….and she would be
without a remedy in terms of the labour legislation.’
[12] In the present matter, the fairness of the termination of the applicant’s contract
can be evaluated by assessing the tone and the content of the termination letter
which reads:
‘Dear Mr Nyakudya
RE: TERMINATION OF EMPLOYMENT: YOURSELF
The above matter bears reference
We are writing to address a matter that has recently come to our attention
regarding your contract of employment. Upon perusal of your personal file we
noted with concern that your five (5) year contract of employment expired on
the 31 March 2022 as per the approval letter dated 08 March 2017.
Furthermore, this contract was extended based on your work permit which
ended on 07 June 2018.You are also remind ed that we requested your South
African Identity Document which was requested by Auditor General but till to
date you have not submitted the same.
Given the circumstances, the municipality is left with no option but to
terminate your services, effective im mediately. Therefore, the contract of
employment with the municipality is unlawful and remain irregular due to the
reasons mentioned herein above.
Please make arrangements to return any municipality property or any other
items that remain in your possessio n at your convenience. Your final
settlement ,including any accrued leave and other entitlements ,will be
processed in accordance with our internal policies and applicable legislation.
If you have any questions or require further clarification, please do n ot
hesitate to contact Human Resource Management section.
We appreciate your understanding in this matter and wish you the best in your
future endeavours….’
[13] Upon examination, it is clear that the applicant’s employment was terminated
despite his skill s being valued by the respondent. The primary obstacle was the
applicant’s work permit and his identity document. As already alluded, being an
illegal foreigner alone does not automatically grant an employer the right to
summarily terminate an employment c ontract. The proper procedures and legal
grounds for termination must still be followed. Furthermore, terminating the
employment contract does not rectify the oversight stemming from the improper
extension. The Immigration Act imposes a duty on employers t o ascertain the
citizenship status of their employees.
[14] In casu , the respondent’s actions contradict the legal precedent which
requires adherence to proper labour law procedures when terminating a contract of
employment specifically against a foreign national. The termination letter itself
confirms the applicant’s assertion that no proper notice was given before the
termination of his contract was effected. This raises serious concerns about the
fairness of the termination of the applicant’s contract. Chapter five of the Basic
condition of employment Act7 (the BCEA) outlines a proper procedure regarding the
notice of termination of contract of employment. The relevant provisions provide:
‘NOTICE OF TERMINATION OF EMPLOYMENT
37. (1) Subject to section 3 8, a contract of employment terminable at the
instance of a party to the contract may be terminated only on notice of not less than -
(a) one week if the employee has been employed for one year or more; or;
(b) two weeks, if the employee has been employed for more than four weeks
but not more than one year;
7 Act 75 of 1997.
(c) four weeks, if the employee -
(i) has been employed for one year or more; or
(ii) …’
[15] Pursuant to the provisions of section 37 (4) (a) of the B CEA, notice of a
termination of contract of employment must be given in writing, except when an
illiterate employee gives it. The primary purpose of giving a prior notice to the
employee is to prepare for the smooth transitional process. In the matter unde r
consideration, it is common cause that the respondent contravened the BCEA failing
to provide prior notice before the terminating the applicant’s contract. Consequently,
the failure to notify the applicant of his contract termination constitutes an unfai r
labour practice, contravening the BCEA principles of fairness and international
standards. Based on the evidence presented, I find that the termination of the
applicant’s contract of employment was unlawful.
[16] The next question is whether the applica nt is entitled to reinstatement as
prayed for. The legal position is that re -instatement must be shown to be fair, when
considering the competing interests of employee and employers. Section 193 (2) of
the LRA provides for the exceptions for the remedy of reinstatement or re -
employment. These exceptions are:
‘(a) the employee does not wish to be re -instated or re -employed;
(b) if the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c) it is no t reasonably practicable for the employer to re -instate or re -employ
the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair
procedure.’
[17] The legal position as codified in section 193 (2) of the LRA was reinforced in
DHL Supply chain (Pty) Ltd and Others v National Bargaining Council for the Road
Freight Industry and Others8, where the Labour Appeal Court (LAC) held that
8 [2014] 9 BLLR 860 (LAC).
“Labour Relations Act 66 of 1995 prescribes reinstatement unless it is proven to be
intolerable or impracticable…the evaluation of this question is clinically objective,
having regard to the balance of fairness between employer and employees and a
decision is the outcome of the exercise of discretion… A decision in terms of this
section is therefore, in part, a value judgment and part, a factual finding made upon
the evidence adduced about the unworkability of the resumption ”.
[18] At paragraph 28.4 of its answering affidavit the respondent asserts that the
position held by the applicant no longer ex ists in the organisational structure. The
applicant failed to counter this claim in his replying affidavit. The legal position is that
a court can only grant an order that is practical, enforceable, and clear. Given the
circumstances of this case, re -insta tement is deemed impractical, making it
impossible for the court to grant such a relief. When reinstatement is not feasible, the
LRA allows for compensation which must be just and equitable. These are motion
proceedings, and no such alternative relief was sought in the papers filed.
Order
[19] In the result, the following order is issued:
1. The termination of the applicant’s contract of employment is declared
unlawful and is hereby set aside.
2. The respondent shall pay costs of this application on Scale A as
contemplated under Rule 67A read with Rule 69 of the Uniform Rules of Court.
____________________
N CENGANI -MBAKAZA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel for the Applicant : Mr. F. Ntayiya
Instructed by : FIKILE NTAYIYA & ASSOCIATES
MTHATHA
Counsel for the Respondent : Adv. L.L. Ngumle
Instructed by : STATE ATTORNEY
MTHATHA
Date Heard : 06 February 2025
Date Delivered : 27 May 2025