Estates warned not to act as immigration police
Homeowners' associations have been warned against targeting suspected undocumented foreign workers at residential estates.
Homeowner associations and body corporates in South Africa are being advised against acting as immigration authorities for their residents. Johlene Wasserman, an attorney, clarified that these entities are not empowered to determine who is legally allowed to reside in the country. Estates can enforce access and security rules, but they must apply these rules uniformly and not single out domestic workers or foreign nationals.
The responsibility for employing undocumented workers typically lies with the employer. If the estate owner hires an undocumented domestic worker, they would bear the legal risk, according to Wasserman. Estate authorities can request identification, passports, or permits as part of their access-control system, but they cannot decide the validity of these documents or the legal right to work in the country.
The line between recording information and adjudicating immigration status should not be crossed by estates, she emphasized. Actions such as refusing access based on expired or fraudulent documents, or determining employment eligibility against immigration status databases, are beyond the estate's authority. Under the Immigration Act, employers must ensure they are not employing illegal foreigners or those without work authorization.
Employers are also required to make reasonable efforts to verify the immigration status of foreign employees. Employers face the main legal consequences, with penalties ranging from fines to imprisonment. Wasserman cautioned estates against conflating their responsibilities with those of employers. If an HOA employs a worker or engages a contractor, they bear the responsibility of verifying that the individuals they hire are legally entitled to work.
When estates are aware of undocumented workers, they could be in breach of Section 42 of the Immigration Act if they issue staff credentials or facilitate the work of undocumented individuals. Accents, appearance, or nationality assumptions cannot be reasonable grounds to target someone, Wasserman stressed. Such suspicions should be reported to the South African Police Service, while immigration concerns should be directed to the Home Affairs department.
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