The Extension of Labour Legislation Protection to Illegal Immigrants

• Jurisdiction: South Africa
• Pages: 818-830
• Date: 25 May 2019
• Published date: 25 May 2019
• Author: Stella Vettori

The Extension of Labour Legislation Protection

to Illegal Immigrants

STELLA VETTORI*

University of South Africa

1 Introduction

Until recently, it has generally been accepted that since the contract of

employment forms the basis of any employment relationship, there can be no

such relationship if there is no valid employment contract. The natural

consequence of this is that if there is no valid contract of employment

underlying the relationship, the labour legislation is not applicable. This

traditional view that a contract of employment provides the ‘cornerstone of

the edif‌ice’ of labour regulation

1

is not unique to South Africa.

A recent decision has put this notion into question: Discovery Health Ltd v

CCMA & Others

2

seems to differentiate between a common-law employee

(where a valid contract of employment is essential) and a ‘statutory

employee’

3

(where a valid contract of employment is not necessarily

essential). The employment of illegal immigrants is forbidden in terms of

immigration legislation.

4

It is trite that an illegal contract is null and void.

However, if a valid contract of employment is not a prerequisite to qualify as

a ‘statutory employee’, the net of protection provided by labour legislation

will be cast wide enough to protect certain workers who are illegal

immigrants or do not have the necessary work permits.

Firstly, the purpose of this article is to question the viability of the

requirement of a valid contract of employment in order to qualify for labour

law protection. The basis for this is that the tests that the courts have

developed to determine the existence of a contract of employment are

grounded in a world of work very different from that which exists today. An

overview of the world of work that existed when the courts developed the

tests will demonstrate that although these tests may have been appropriate at

the time, they may not necessarily be as appropriate today. As will be

demonstrated, the tests developed by the courts to determine the existence of a

* BA LLB (Wits)LLM (Unisa) LLD (UP). Professor, Department of Mercantile Law, School of Law,

University of South Africa.

1

Otto Kahn-Freund ‘A Note on Status and Contract in British Law’(1951) 14 Modern LR 504 at 635.

2

(2008) 29 ILJ 1480 (LC).

3

This term was f‌irst coined by Douglas Brodie ‘Employees, Workers and the Self-employed’(2005)

34 Industrial Law Journal (UK) 253.

4

Section 38(1) of the Immigration Act 13 of 2002 reads:

‘No person shall employ –

(a) an illegal foreigner;

(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’.

818

(2009) 21 SA Merc LJ 818

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