The Eastern Cape High Court in Mthatha has ruled that the dismissal of a Zimbabwean man over an expired work permit was unlawful.

Samuel Nyakudya was employed as a research assistant at OR Tambo District Municipality from 2009, but he was granted a temporary residence permit in March 2012. It allowed him to reside in South Africa and seek employment.

After the permit expired, he was granted a second general work permit commencing in May 2014.

He was employed on successive fixed-term contracts until March 2022. When the contract expired, the municipality allowed him to continue working without a new fixed-term contract.

In November 2023, the Municipality informed Nyakudya that his fixed-term contract expired end of March 2022. He was also notified that he had not submitted a copy of his South African identity document to the municipality, a document that the Auditor-General had requested.

The Municipality said it was compelled to terminate his employment contract immediately due to its unlawful nature, specifically because his work permit had expired at the time of his employment.

Disenchanted, he sought relief in the high court declaring his employer’s decision to terminate his contract of employment wrongful, unlawful, and constitutionally invalid.

Nyakudya argued that the abrupt termination of his employment contract, without prior notice or adherence to proper procedures, violated his legitimate expectation and constituted a failure to follow due process in ending the employment relationship.

Presiding over the matter, acting judge Nolubabalo Cengani-Mbakaza, found that the Municipality had allowed Nyakudya to continue working after the contract’s expiry, effectively creating a new contract, and that terminating him was an unfair labour practice.

‘Upon examination, it is clear that the applicant’s employment was terminated despite his skills being valued by the respondent. The primary obstacle was the applicant’s work permit and his identity document,” said judge Cengani-Mbakaza.

The judge further added that being an illegal foreigner alone does not automatically grant an employer the right to summarily terminate an employment contract. 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 to ascertain the citizenship status of their employees,” she added.

The judge highlighted that according to the Basic Conditions of Employment Act, it’s necessary to provide employees with notice of termination to allow employees to prepare for a smooth transition.

Judge Cengani-Mbakaza denied Nyakudya’s request for re-instatement, stating it was impractical. The municipality had indicated that Nyakudya’s position no longer existed in the organizational structure, and he failed to counter this claim in his replying affidavit. Therefore, the court could not grant the relief he sought.

“When reinstatement is not feasible, the Labour Relations Act allows for compensation which must be just and equitable. These are motion proceedings, and no such alternative relief was sought in the papers filed,” said the judge.

Nyakudya’s employment contract termination was ruled unlawful and subsequently set aside by the judge; however, reinstatement was not ordered.

The municipality was ordered to pay the costs of the application.

sinenhlanhla. masilela@iol.co.za

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