Master Builders Association North (MBA North) has warned construction firms that  deliberately flouting immigration laws and occupational health and safety regulations could result in fines, imprisonment and/or reputational damage.

Legricon director Gerhard Geyser, an occupational health, safety and environmental management compliance specialist and consultant to the MBA North, says that anyone who knowingly employs an illegal foreigner or a foreigner in violation of the Immigration Act, No. 13 of 2002 commits an offence.

Upon conviction, the employer is liable to a fine of up to R40 000, or imprisonment for a period not exceeding a year.

For a second offence, the penalty increases to a fine of up to R80 000, or imprisonment for up to two years.

For a third or subsequent offence, the employer faces imprisonment of up to five years without the option of a fine.

Geyser says these escalating penalties underscore the seriousness with which South African law treats violations related to the employment of illegal foreign nationals.

“The Department of Home Affairs has actively pursued employers who fail to comply with these regulations.

“We have all seen the media reports of employer representatives, such as construction managers being arrested in this regard.”

Geyser notes that hiring illegal foreigners can also damage brand reputation and engagement with local communities.

“There is growing scrutiny from government authorities, the media and the public on businesses that circumvent labour laws.

“Negative publicity can lead to distrust among clients, investors and potential business partners.

“South African firms that depend on local communities for their labour may also find that their relationships are strained if they are perceived to be prioritising foreign workers over local employment opportunities.

“Additionally, the employment of undocumented workers may undermine broader efforts to create sustainable and lawful job opportunities for South Africans, exacerbating social tensions.”

In the South African legal framework, illegal foreign nationals are generally afforded the same protections and rights as citizens regarding remuneration and workplace-related rights, with the possible exception of medical cover, adds Geyser.

“However, due to their lack of legal status, these workers are highly vulnerable to exploitation.

“Employers may pay them less than their South African counterparts, delay or withhold payments, or impose unfair wage deductions, knowing these individuals are unlikely to report violations due to fear of discovery or deportation.”

Geyser says there are also several reasons construction firms might take the risk of hiring undocumented foreign workers.

“Compared to their South African counterparts, undocumented foreign workers could be willing to accept lower wages and may not require the same benefits or legal protection, such as Unemployment Insurance Fund contributions or pensions.

“There is also a perception that foreign workers, especially undocumented ones, may be more willing to take on physically demanding or undesirable tasks, sometimes working longer hours and under harsher conditions.

“Some employers also believe that these workers exhibit a stronger work ethic or a greater willingness to comply with labour demands due to their need to secure and maintain employment.”

However, while employing illegal foreign nationals may offer short-term financial benefits, the long-term risks related to legal challenges, damage to reputation, and strained community relations outweigh these advantages, emphasises Geyser.

In addition, when employers deliberately hire illegal foreign nationals, it is likely indicative of a broader disregard for the safety and well-being of all workers, as well as a lack of adherence to legal obligations.