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[2010] ZALAC 8
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Kylie v Commission for Conciliation Mediation and Arbitration and Others (CA10/08) [2010] ZALAC 8; 2010 (4) SA 383 (LAC) ; 2010 (10) BCLR 1029 (LAC) ; (2010) 31 ILJ 1600 (LAC) ; [2010] 7 BLLR 705 (LAC) (26 May 2010)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
(HELD AT JOHANNESBURG)
Case No.: CA10/08
KYLIE Appellant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First
Respondent
COMMISSIONER BELLA GOLDMAN Second
Respondent
MICHELLE VAN ZYL t/a
BRIGITTE’S Third Respondent
JUDGMENT:
DAVIS JA:
Introduction
[1] The appellant was a sex worker who
was employed in a massage parlor to perform various sexual services
for a reward.
1
[2] On 27 April 2006, appellant was
informed that her employment was terminated, apparently without a
prior hearing, for a series
of reasons which are not essentially
relevant to the present dispute. On 14 August 2006 the dispute was
referred to arbitration
which was set down to be heard on 13
September 2006. Before evidence could be heard, second respondent
enquired as to whether
first respondent had jurisdiction to hear the
matter in the light of the fact that the appellant had been employed
as a sex worker
and accordingly her employment was unlawful. On 11
December 2006, second respondent handed down a ruling in which she
concluded
that first respondent did not have jurisdiction to
arbitrate on an unfair dismissal in a case of this nature. It was
against
this ruling that the appellant approached the court
a
quo
on review.
[3] Cheadle AJ held that the
definition of employee in section 213 of the Labour Relations Act 66
of 1995 (‘LRA’) was
wide enough to include a person whose
contract of employment was unenforceable in terms of the common law.
However, he held that
a sex worker was not entitled to protection
against unfair dismissal as provided in terms of section 185 (a) of
the LRA because
it would be contrary to a common law principle which
had become entrenched in the Republic of South Africa Constitution
Act 108
of 1996 (‘the Constitution’) that courts ‘ought
not to sanction or encourage illegal activity’.
[4]
In order to fully
analyse the submissions made on behalf of appellant
2
by
Mr
Trengove, who appeared together with Mr Kahanovitz, Ms Cowen and Ms
Mji,
it
is necessary to analyse the precise reasoning employed by Cheadle AJ
more comprehensively.
The
judgment of the court a quo
[5] As noted, Cheadle AJ defined the
essential question as whether ‘as a matter of public policy,
courts (and tribunals) by
their actions ought to sanction or
encourage illegal conduct in the context of statutory and
constitutional rights’.
[6] Cheadle AJ then referred to the
Sexual Offences Act 23 of 1957 (‘the Act’) which makes
brothel keeping a criminal
offence and which defines the concept of a
brothel to include persons who reside in a brothel and share in any
monies taken there.
Section 3(a) and (c). In terms of section
20(1) (A) (a) of the Act, unlawful carnal intercourse for reward
constitutes a criminal
offence which attracts a criminal penalty of
imprisonment of no more than three years and a fine of no more than
R6000.
[7] On this basis, Cheadle AJ invoked
the principle
ex turpi causa
non oritur actio
which
‘prohibits the enforcement of immoral or illegal contracts’.
Thus, if a contract is illegal, courts must regard
the contract as
void and hence unenforceable. In turn, a contract is illegal if it
is contrary to public policy and it is against
public policy to
engage in a contract which is contrary to law or morality. Citing
Christie
The Law of Contract
in South Africa
(5ed) at
382, Cheadle AJ noted that courts regarded adultery and commercial
sex as immoral and of such turpitude so as to render
an agreement
concerning or linked to such morality as void and thus unenforceable.
[8] Turning to the implications of a
statutory prohibition and to the application of the
ex
turpi causa
rule, Cheadle
AJ found that the rule applies, if a statute properly interpreted,
intends to nullify a contract arising from or associated
with a
legally prohibited activity. While the corollary to the
ex
turpi causa
rule, the in
pari delicto
rule, does, on occasion, relax the former rule, that relaxation does
not compromise the underlying policy of discouraging illegality
of
contractual relationships. As the court stated in
Jajbhay
v Cassiem
1937 AD 539
, the
relaxation is only justified if there are claims of simple justice
between individuals of which account must be taken and
if public
policy is ‘not foreseeably affected by a grant or a refusal of
the relief claimed’. at 545.
[9] Applying this
dictum
to the provisions of the Act, Cheadle AJ concluded that the language
which was employed in the statute clearly supports the conclusion
that a contravention of a prohibition of the Act results in the
nullifying of a contract made in pursuit of or which is associated
with the prohibition.
[10] For Cheadle AJ the question
therefore arose, on the basis of this finding, as to whether,
notwithstanding the invalidity of
the contractual relationship ,
section 23 of Constitution affected the conclusion of the court a quo
, being a finding which was
clearly adverse to the appellant. The
question can be phrased thus: Does a constitutional protection of
fair labour practices
as enshrined in section 23 of the Constitution
apply to a person who would, but for an engagement in illegal
employment, enjoy
the benefits of this constitutional right. That
question was answered in the negative by the court
a
quo,
primarily because,
were such rights to be granted, a court would undermine a fundamental
constitutional value of the rule of law
by sanctioning or encouraging
legally prohibited activity. In the view of the learned judge in
the court
a quo,
that conclusion was supported by the Constitutional Court in its
decision in
S v Jordan and
others
[2002] ZACC 22
;
2002 (6) SA 642
(CC)
at para 28 ff.
[11] The court
a
quo
further bolstered its
approach by examining the nature of dismissal legislation. In terms
of section 193 (2) of the LRA, in the
case of an unfair dismissal the
primary remedy is reinstatement or reemployment. In the view of
Cheadle AJ:
“
Nothing illustrates the
conflict of the objective of the right to a fair dismissal and the
objecting of the Sexual Offences Act
more than the issue of
reinstatement. An order of reinstatement is the primary remedy for
an unfair dismissal. Reinstating
a person in illegal employment
would not only sanction illegal activity but may constitute an order
on the employer to commit a
crime
.”
[12] Cheadle AJ then engaged in an
alternative analysis, on the assumption that section 23 of the
Constitution does afford constitutional
protection to the appellant.
He concluded that, in such a case, the Act constituted a justifiable
limitation upon the section
23 sourced constitutional rights of
appellant, essentially because the limitation ‘gives effect to
the fundamental rule of
law principle: courts should not by their
actions sanction or encourage illegal activity’.
[13] So much for the essential
reasoning employed by Cheadle AJ in the court
a
quo
. I turn now to deal
with the primary submissions of appellant.
Appellant’s
Case
[14] Mr Trengove attacked the
reasoning as adopted by Cheadle AJ in the court
a
quo
. In his view, instead
of starting with a discussion of public policy as divined from the
law of contract, the proper approach
was to commence with the
Constitution and in particular, whether, in principle, a person such
as appellant, enjoyed constitutional
rights in general and
specifically those rights set out in section 23. Only if the
question of the application of the Constitution
to this dispute was
answered in favour of the appellant, was the court then required to
proceed to examine issues relating to the
appropriate remedy. In Mr
Trengove’s view, it is at this stage that concerns of public
policy become applicable.
[15] The question of the application
of the Constitution thus becomes the starting point for appellant’s
argument. Thereafter,
Mr Trengove contended that the LRA must be
read so as to implement section 23 of the Constitution, a point
reiterated recently
by Ngcobo J (as he then was) in
Chirwa
v Transnet
[2007] ZACC 23
;
2008 (4) SA 367
(CC) at para 110:
“
The objects of the LRA are
not just textual aides to be employed where the language is
ambiguous. This is apparent from the interpretive
injunction in
section 3 of the LRA which requires anyone applying the LRA to give
effect to its primary objects and the Constitution.
The primary
objects of the LRA must inform the interpretive process and the
provisions of the LRA must be read in the light of
its objects.
Thus where a provision of the LRA is capable of more than one
plausible interpretation, one which advances the
objects of the LRA
and the other which does not, a court must prefer the one which will
effectuate the primary objects of the LRA
.”
For this reason therefore, since the
present dispute is predicated on the application of the LRA, it is
necessary to commence with
the source of the LRA, that is to engage
in an examination of the application of section 23(1) of the
Constitution to the present
dispute.
The scope of the section 23 right
[16] Section 23(1) provides that
‘everyone has the right to fair labour practices’. The
term ‘everyone’,
which follows the wording of section
7(1) of the Constitution which provides that the Bill of Rights
enshrines the right ‘of
all people in the country’, is
supportive of an extremely broad approach to the scope of the right
guaranteed in the Constitution.
[17] This point was confirmed by
Ngcobo J (as he then was) in
Khosa
v Minister of Social Development
[2004] ZACC 11
;
2004 (6) SA 505
(CC) para 111:
“
The word ‘everyone’
is a term of general import and unrestricted meaning. It means what
it conveys. Once the state
puts in place a social welfare system,
everyone has a right to have access to that system.”
[18] From its inception, the
Constitutional Court has been consistent in this approach. In
S
v Makwanyane
[1995] ZACC 3
;
1995 (3) SA
391
(CC) at para 137 Chaskalson P (as he then was) said that the
right to life and dignity ‘vests in every person, including
criminals convicted of vile crimes’. The learned president
went on to say that these criminals ‘do not forfeit their
rights under the Constitution and are entitled, as all in our country
now are, to assert these rights, including the right to life,
the
right to dignity and the right not to be subjected to cruel, inhuman
or degrading punishment’.
[19] This affirmation of protection of
a very broad constituency of persons is not undermined by the finding
in
S v Jordan
supra
.
In their minority judgment, O’Regan and Sachs JJ (a point not
contradicted in the majority judgment) observe at para 74:
“
The very character of the
work they undertake devalues the respect that the Constitution
regards as inherent in the human body.
This is not to say that as
prostitutes they are stripped of the right to be treated with respect
by law enforcement officers.
All arrested and accused persons must
be treated with dignity by the police. But any invasion of dignity,
going beyond that
ordinarily implied by an arrest or charge that
occurs in the course of arrest of incarceration cannot be attributed
to section
20(1A)(a) but rather to the manner in which it is being
enforced. The remedy is not to strike down the law but to require
that
it be applied in a constitutional manner. Neither are
prostitutes stripped of the right to be treated with dignity by their
customers.
The fact that a client pays for sexual services does not
afford the client unlimited license to infringe the dignity of the
prostitute
.”
[20] This
dictum
affords support for Mr Trengove’s argument that the illegal
activity of a sex worker does not
per
se
prevent the latter from
enjoying a range of constitutional rights. By contrast, the test is
rather what constitutional protections
are necessarily removed from a
sex worker, given the express criminal prohibition of their
employment activities in terms of the
Act.
[21] The question arises thus as to
whether section 23 affords protection to a sex worker. In
Nehawu
v UCT
(2003) 24 ILJ 95 (CC)
at para 40 the Constitutional Court emphasised that the focus of
section 23(1) of the Constitution was on
the ‘relationship
between the worker and the employer and the continuation of that
relationship on terms that are fair to
both’. That approach
followed upon the judgment in
SANDU
v Minister of Defense
(1999) 20 ILJ 2265 (CC) at paras 28 – 30. Even if a person is
not employed under a contract of employment, that does not
deny the
‘employee’ all constitutional protection. This
conclusion is reached despite the fact they ‘may not
be
employees in the full contractual sense of the word’ but
because their employment ‘in many respects mirrors those
of
people employed under a contract of employment’.
[22] Once it is accepted that the
constitutional right to fair labour practices vests in ‘everyone’
and, further that
it includes not only parties to a contract of
employment but those persons in an employment relationship, Mr
Trengove’s submission,
to the effect that persons, who engage
in services pursuant to an employment relationship such as appellant,
are covered by section
23, becomes particularly compelling.
[23] That conclusion is also
supported by two decisions of the Labour Appeal Court in which this
Court ‘approached the vexed
question of employment relationship
on the basis of the substance of the arrangements between the parties
as opposed to the legal
form so adopted’.
State
Information Technology Agency (Pty) Limited v CCMA
(2008) 29 ILJ 2234 (LAC) at para 10.
[24] In
Denel
(Pty) Ltd v Gerber
(2005)
26 ILJ 1256 (LAC), Zondo JP, after a meticulous examination of
comparative and local authorities, said at para 94:
“
I am unable to agree with
the approach adopted by the Industrial Court in
Callanan
,
by this court in
Briggs
and by Lord Denning MR and Lord Justice Lawton in
Massey’s
case and Lord Justice Lawton in
Ferguson’s
case which, it seems to me, is to the effect that, once it is found
that the alleged employee voluntarily made an arrangement in
terms of
which he or she would not be ‘an employee’ of the alleged
employer but would not be ‘an employee’
of the alleged
employer but would be an ‘employee’ of his or her own
company or close corporation which would provide
services to the
alleged employer, he cannot later be found to have been an employee
of the company with which his or her own had
an agreement to provide
services. As I have indicated above already, the main weakness of
that approach is that it disregards
the realities of the relationship
between the parties and is open to abuse because it makes it possible
for two persons to take
themselves out of the reach of such important
legislation as the Act and the
Basic Conditions of Employment Act 75
1997
.
”
[25] Taken together these arguments
support a generous approach to the range of beneficiaries of rights
provided for in terms of
section 23(1).
In turn, this conclusion is
supported by the minority judgment of O’Regan and Sachs JJ when
they note that sex workers
are not stripped of the right to be
treated with dignity by their customer. By logical extension, this
should also mean that
their employers incur a similar obligation.
[26] In summary, as sex workers cannot
be stripped of the right to be treated with dignity by their clients,
it must follow that,
in their other relationship namely with their
employers, the same protection should hold. Once it is recognised
that they must
be treated with dignity not only by their customers
but by their employers, section 23 of the Constitution ,which, at its
core,
protects the dignity of those in an employment relationship,
should also be of application.
[27] Professor Rochelle Le Roux
expresses the point as follows:
“
[it is] also important to
bear in mind the fact that the unfair labour practice jurisdiction
was introduced to counter the arbitrariness
of lawfulness, in
particular, termination by lawful notice. Furthermore, as suggested
earlier, it is conceivable that a labour
practice may well impact on
the position of either prospective or retired employees. For these
reasons, and in absence of an
internal limitation clause, it is
suggested that labour practices in s 23(1) ought to be approached
dispassionately and be given
a broad construction. An act of
terminating employment, the structuring of working hours, or
discipline at work remain labour
practices, irrespective of whether
they are done in the context of legal or illegal work
.”
See R. Le Roux “The meaning of
‘worker’ and the road towards diversification: Reflecting
on Discovery, SITA and
‘Kylie’” 2009 (30) ILJ 49 at
58.
[28] In my view, appellant meets the
threshold requirement so that she is a beneficiary of the applicable
constitutional rights.
The enquiry now turns to whether she is
entitled to any legal relief.
The
question of relief
[29] In refusing to recognise the
possibility of a remedy in terms of the LRA, Cheadle AJ based his
decision on the view that the
legislature intended that the Act not
only penalised prohibited activity but precluded courts from
recognising any rights or claims
arising from that activity. In
terms of his approach, were a court to recognise a claim based on ‘a
constitutional right’,
that court would be sanctioning or
encouraging the prohibited activity’. Whereas foreign and
child workers, who are prohibited
from assuming certain forms of
employment, can be afforded protection because the prohibition is
aimed at ‘who does the job
rather than the job itself’,
the prohibition with regard to sex work concerns the nature of the
job. Even though they are
vulnerable to exploitation, such
protection ‘will mean sanctioning and encouraging activities
that the legislature has constitutionally
decided should be
prohibited’.
Evaluation
[30] It is now possible to evaluate
this part of the court
a
quo’s
judgment. To
recapitulate: the foundational propositions upon which the judgment
of the court
a quo
can be summarized thus:
1. There is a common law principle
that courts ought not to sanction or encourage illegal activity;
This principle is now incorporated
within the Constitution, entrenched as an element of the rule of
law, and set out in section
1 of the Constitution;
As a constitutional imperative, the
statutory rights are trumped which ‘renders a sex worker’s
claim to statutory
right to fair dismissal and LRA unenforceable.’
[31] Mr Trengove submitted that these
propositions were all palpably wrong. The common law principle was
more limited in its
scope and more qualified in its application than
had been held to be the case by the court
a
quo
. Furthermore, the
common law principle was not entrenched in the Constitution and
accordingly, as a principle of common law, did
not automatically
trump those protections afforded by the Constitution, including
section 23(1) thereof and any legislative implementation
thereof,
including section 185(a) of the LRA.
[32] In general, South African law
takes the view that an illegal contract is void and that the
illegality arises when a contract’s
conclusion, performance or
object is expressly or impliedly prohibited by legislation or is
contrary to good morals or public policy.
Macqueen and Cockrell
‘
Illegal Contracts’
in Zimmermann et al
Mixed
Legal Systems in Comparative Perspective
143
at 144. In this connection, a comment made more than seventy years
ago by Aquilius
(1941) 58 SALJ 344
is of particular significance: ‘in
a sense … all illegalities may be said to be moral and all
immorality and illegality
contrary to public policy’.
[33] This approach was later reflected
by Smalberger JA in
Sasfin
(Pty) Ltd v Beukes
1989 (1)
SA 1(A)
at 8F as follows:
“
That the principles
underlying contracts contrary to public policy and contra bones mores
may overlap also appears from the judgment
of this court in
Ismail
v Ismail
…
These classifications may not be of importance in principle, for
where a court refuses to enforce a contract it ultimately
so decides
on the basis of public policy
.”
[34] Whatever the justification for
refusing to enforce the terms or obligations which flow from an
illegal contract, in South African
law this position has ossified
into an absolute rule so that courts will not assist a person who has
entered into an illegal contract
to so enforce this contract. While
the court possesses a certain amount of discretion to determine
whether a contract is illegal,
once it has so determined it follows
‘as a necessary and inflexible consequence that no action could
be based thereon’
Macqueen and Cockrell at 163. Generally,
where performance had been made in terms of an illegal contract, a
court will also not
assist a party who has performed to recover his
or her performance by the use of an enrichment based remedy.
However, the courts
have acknowledged that they have an equitable
discretion to relax the operation of the so called
par
delictum
rule in order to
allow one party to utilise an enrichment based remedy, an approach
which is sourced back to
Jajbhay
v Cassiem
1939 AD 537.
In
this case, the Appellate Division held that the court should relax
the rule if it was necessary ‘to prevent injustice
or to
satisfy the requirements of public policy’ at 558. See more
recently,
Henry v Brandfield
1996 (1) SA 244
(D) at 252 – 253.
[35] In examining this approach
Macqueen and Cockrell write at 165:
“
In determining whether to
exercise this discretion, the South African courts purport to secure
‘the doing of simple justice
between man and man’. Such
an approach allows for a nuanced and context – sensitive
consideration of all relevant
factors
.”
[36] The point that emerges from these
dicta
is that our law is not wholly inflexible in its refusal to relax the
par delictum
rule. As Professor Visser
Unjustified
Enrichment
at 447 writes:
“
No hard and fast criteria
had been laid down to judge when the rule should be relaxed and each
case will have to be determined according
to its peculiar
circumstances
.”
Professor Zimmermann
The
Law of Obligations
at 847
provides historical support for this approach:
“
The Roman jurist did not
seem to have hesitated to evaluate and compare the degree of
turpitude of both parties involved in the
transaction and decide in
favour of the party who is less to blame.”
[37] Not only does the
par
delictum
rule reflect a
manifestation of public policy to guide the courts in the
interpretation, application and development of the law,
but contrary
to the approach adopted by the court
a
quo,
the determination as
to whether the
par delictum
rule is inflexibly enforced in all circumstances depends upon public
policy, ultimately sourced in the Constitution. This conclusion
is
to be contrasted with the approach that the Constitution has
encapsulated within it so inflexible an approach to the
par
delictum
rule that a court
is disempowered from exercising a discretion in favour of a party so
as to prevent manifest injustice. See
also
Brummer
v Gorfil Brother Investments (Pty) Limited en andere
1999 (3) SA 389
(SCA) at 403 B – G.
[38] I return to the key question:
what discretion do the courts have in the determination of a remedy,
in this case for an alleged
unfair dismissal of a sex worker. Mr
Trengove correctly noted that, while South African law eschewed the
recognition of an illegal
contract and the obligations and rights
that flowed therefrom, in this case appellant’s contention was
that, even if there
was no valid contract, there was an employment
relationship and in terms of that relationship, the appellant fell
within the scope
of the LRA. Accordingly, the question arose as to
whether a court could, in the light of the existing approach to
illegal contracts,
provide some remedy to a party, such as appellant,
if she could prove her allegation that she had been unfairly treated
within
the framework of the unfair labour practice jurisprudence
guaranteed in terms of section 23(1) of the Constitution and
enshrined
in the LRA.
[39] That enquiry is not necessarily
incongruent with the finding in
Jordan’s
supra,
that the Act which criminalises prostitution is constitutional. As
noted, the criminalisation of prostitution does not necessarily
deny
to a sex worker the protection of the Constitution and, in particular
section 23(1) thereof, and by extension its legislative
implementation in the form of the LRA.
[40] The express purpose of the LRA
‘is to advance economic development, social justice, labour,
peace and the democratisation
of the work place’ Section 1 of
the LRA. In itself, this set of principles can be traced to section
23 of the Constitution.
In particular, section 23(1), which
provides that everyone has the right to fair labour practices, was
designed to ensure that
the dignity of all workers should be
respected and that the workplace should be predicated upon principles
of social justice, fairness
and respect for all. See
Nehawu
v UCT
2003 (2) BCLR 154
(CC) at paras 33 – 40.
[41] If the purpose of the LRA was to
achieve these noble goals, then courts have to be at their most
vigilant to safeguard those
employees who are particularly vulnerable
to exploitation in that they are inherently economically and socially
weaker than their
employers. Mr Trengove urged that this
consideration applied with even greater force in the case of sex
workers who are an especially
vulnerable class exposed to
exploitation and abuse by a range of people with whom they interact,
including their employers. In
this connection, he referred to the
United Nations General Assembly Declaration on the Elimination of
Discrimination against Women
which expressly condemns the
exploitation of prostitution of women. In addition paragraph 5 of
the ILO’s Employment Relationship
Recommendation R198 of 15
June 2006 requires member states to take particular account in
national policy of the need to ensure
the effective protection of
workers ‘
especially
those affected by the uncertainty as to the existence of an
employment relationship, including women workers, as well
as the most
vulnerable workers, young workers, older workers, workers in the
informal economy, migrant workers and workers with
disabilities.
’
[42] There is a considerable debate
within the feminist literature as to whether prostitution invariably
entails an inherent element
of coercion, exploitation and
domination. Pro-sex feminists, for example, contend that sex work
can be a positive experience
for women who employ their autonomy to
make an informed decision to engage in prostitution. See for
contrasting perspectives,
Catherine Mackinnon 1993
Michigan
Journal of Gender and Law;
Laurie Schrage
Moral
dilemmas of Feminist: Prostitution, Adultery and Abortion
(1994); and Maggie O’Neil
Prostitution
Feminism
(2001).
[43] This debate notwithstanding, when
viewed within the South African context, many sex workers are
particularly vulnerable and
are exposed to exploitation and vicious
abuse. It may be that this categorisation is not applicable to all
cases of sex workers
but there is, at the very least, a
prima
facie
case that the
appellant falls within such a vulnerable category. This case is
made out in the papers, which have been placed
before the court. On
these papers, it appears that appellant worked 14 hours a day, 7 days
a week and was subjected to a strict
regime of rules and fines,
practices which in the ordinary course were curtailed by the
Basic
Conditions of Employment Act 75 of 1997
.
[44] In the circumstances, where a sex
worker forms part of a vulnerable class by the nature of the work
that she performs and the
position that she holds and she is subject
to potential exploitation, abuse and assaults on her dignity, there
is, on the basis
of the finding in this judgment, no principled
reason by which she should not be entitled to some constitutional
protection designed
to protect her dignity and which protection by
extension has now been operationalised in the LRA.
[45] These considerations are
supported by authority dealing with the legal implications of an act
which is
void ab initio
as a result of a contravention of legislation. De Ville
Constitutional and Statutory
Interpretation
(2000) at
261 writes about whether a sanction imposed is ‘sufficient
punishment’ for non compliance with a statutory
provision that
‘it needs to be asked whether the purpose of the legislation
will be achieved by invalidating the action concerned
or whether the
imposition of the (penal) sanction will suffice in attaining this
purpose’. See for example
Pottie
v Kotze
1954 (3) SA 719
(A). In
Kuhne and Nagel
(Pty) Ltd v Elias and another
1979
(1) SA 131
(T) at 133 the following passage from Boshoff AJP is
instructive:
“
The use of the word “shall”
and the word “moet” in the Afrikaans version is a strong
indication, in the
absence of considerations pointing to another
conclusion, that the Legislature is issuing a statutory command and
intends disobedience
to be visited with nullity. See
Sutter
v Scheepers
1932 AD
165
at 173. In the last-mentioned case, Wessels JA suggested
certain useful guides, which were not intended to be exhaustive, to
test whether provisions are peremptory or directory:
“
If
a provision is couched in a negative form it is to be regarded as
peremptory rather than as a directory mandate, but this is
not
conclusive.
If
a provision is couched in positive language and there is no sanction
added in case the requisites are not carried out, then the
presumption is in favour of an intention to make the provision only
directory.
If,
on a consideration of the scope and objects of the provision, it is
found that its terms would, if strictly carried out, lead
to
injustice, and even fraud, and if there is no explicit statement that
the act is to be void if the terms are not complied with,
or if no
sanction is added, then the presumption is rather in favour of the
provision being directory
.
””
[46] What these
dicta
reveal is that courts have not always employed the inflexible
approach adopted by Cheadle AJ to illegal transactions but have ,
on
occasion , considered whether to refuse to recognise any implication
of an illegal act after an inquiry into the purpose of
the
criminalizing statute and the effect of the prohibition. In this
case, the court is asked to consider the impact of a broad
based
constitutional protection and the preservation of the dignity of
vulnerable persons in so exercising a discretion to decide
that such
an employment relationship holds some implications for the parties to
the relationship.
The
case of Hoffman Plastics Inc v NLRA; 53545 137 (2002)
[47] The need to interrogate the
purpose of legislation that is contravened by a contract or an
employment relationship and the
ideological implications of a
decision are well illustrated by the judgments in this case. This
case invoked the payment of backpay
to a dismissed worker who had not
complied with US immigration laws and was thus classified as an
‘undocumented worker’.
Chief Justice Rehnquist, who
wrote the majority opinion, drew an analogy between employees who
worked without immigration authorization
and employees who were
ineligible for reinstatement or backpay because, they have ‘committed
serious criminal acts’,
such as trespass or violence against
the employers property.
[48] The majority then went on to say
that backpay award could undermine a ‘federal statute or policy
outside of the competence’
of the National Labour Relations
Board, in this case immigration laws. The majority characterized
the dismissed employee’s
conduct in completing the relevant
immigration laws as ‘criminal’ and hence awarding backpay
would condone and encourage
future violations of the relevant
immigration laws.
[49] Justice Breyer, who dissented
with three other justices, held that an award of backpay is
consistent with labour law and immigration
policy as it would help to
deter unlawful activity that both labour and immigration laws seek to
prevent. Further, the dismissal
of the employee was motivated by
the employer’s anti-union conduct and not by the employee’s
own conduct.
[50] With due respect to the majority
of the Supreme Court, much of their jurisprudence can be described as
being significantly
incongruent with our Constitution’s
commitment to freedom , equality and dignity and its concern to
protect the vulnerable,
exploited and powerless. The Constitution
reflects the long history of brutal exploitation of the politically
weak, economically
vulnerable and socially exploited during three
hundred years of racist and sexist rule. The text represents a
majestic assertion
of the possibility of the construction of a
community of concern, compassion and restitution for all such
segments of the South
African community.
[51] By contrast, the more enlightened
minority opinion in
Hoffman
Plastics
illustrates two
key points for the purposes of this dispute: the need to interrogate
the nature of the competing legal regimes,
in this case labour law
and the regime set out in the Act. Secondly, the basis of the
conduct which triggers the relief sought,
in this case allegations of
employer misconduct, are not strictly connected to the prohibitions
contained in the Act.
Summation
[52] These consideration do not mean
that the full range of remedies available in terms of the LRA should
necessarily be available
in every such case. Expressed differently,
this judgment does not hold that, when a sex worker has been unfairly
dismissed, first
respondent or a court should or can order her
reinstatement, which would manifestly be in violation of the
provisions of the Act.
But section 193 of the LRA provides for
considerable flexibility to first respondent or a court. For
example, although a arbitrator
or court should require the employer
to reinstate or reemploy an employee on a finding that a dismissal is
unfair, the court or
arbitrator has a discretion to refuse
reinstatement where it is not reasonably practicable for the employer
to reinstate or reemploy
the employee. Manifestly, it would be
against public policy to reinstate an ‘employee’ such as
appellant in her employ
even if she has could show, on the evidence,
that her dismissal was unfair. But, that conclusion should not
constitute an absolute
prohibition to, at least, some protection
provided under the LRA, a protection which can reduce her
vulnerability, exploitation
and the erosion of her dignity.
[53] For similar reasons it may well
be that compensation for a substantively unfair dismissal would be
inappropriate in the present
kind of case. If compensation for
substantive unfairness is to be regarded as a monetary equivalent for
the loss of employment,
it may be, although given the precise relief
sought I express no final view, that such compensation would be
inappropriate in a
case where the nature of the services rendered by
the dismissed employee are illegal. By contrast, monetary
compensation for a
procedurally unfair dismissal has been treated as
a
solatium
for the loss by an employee of her right to a fair procedure.
Johnson
& Johnson (Pty) Ltd v CWIU (1999) 20 ILJ 89 (LAC)
at para 41. This kind of compensation is therefore independent of the
loss of illegal employment in this case and would therefore
appear to
be applicable in the appropriate case where the services rendered by
the employee are classified as illegal.
Conclusion
[54] It is important to emphasise the
precise findings of this judgment and what this judgment does not so
hold. This judgment
cannot and does not sanction sex work. That
is a matter for the legislature. It may be that the Law Reform
Commission’s
investigation into adult prostitution will have a
significant effect upon a legislative solution to the variety of
difficulties
raised by sex work and this case. However, the fact
that prostitution is rendered illegal does not, for the reasons
advanced
in this judgment, destroy all the constitutional protection
which may be enjoyed by someone as appellant, were they not to be a
sex worker. The approach adopted by Corbett JA (as he then was) in
Goldberg and others v
Minister of Prisons
1979
(1) SA 14
(A) which is sourced in our common law is equally
applicable:
“
[f]undamentally a convicted
and sentenced prisoner retains all the basic rights and liberties
(using the word in its Hohfeldinn
sense ) of an ordinary citizen
except those taken away from him by law expressly or by implication,
or those necessarily inconsistent
with the circumstances in which he,
as a prisoner, is placed
.”
at 39
This point was reinforced by the
Constitutional Court in
Minister
of Home Affairs v NICRO
[2004] ZACC 10
;
2005
(3) SA 280
(CC) at para 58 where Chaskalson CJ cited the following
passage from the judgment of Gonthier J in
Sauvé v Canada (Chief Electoral Officer)
[1993] 2 SCR 438:
“
When the façade and
rhetoric is stripped away, little is left of the government’s
claim about punishment other than
that criminals are people who have
broken society’s norms and may therefore be denounced and
punished as the government sees
fit, even to the point of removing
fundamental constitutional rights. Yet, the right to punish and to
denounce, however important,
is constitutionally constrained. It
cannot be used to write entire rights out of the Constitution, it
cannot be arbitrary, and
it must serve the constitutionally
recognised goal of sentencing
.”
In other words, only those rights
which are necessary for the implementation of the provisions of the
Act are to be removed from
the enjoyment of appellant. Her dignity
is not to be exploited or abused. This remains intact and the
concomitant constitutional
protection must be available to her as it
would to any person whose dignity is attacked unfairly. By
extension from section 23(1),
the LRA ensures that an employer
respects these rights within the context of an employment
relationship. Expressed differently,
public policy based on the
foundational values of the Constitution does not deem it necessary
that these rights be taken away from
appellant for the purposes of
the Act to be properly implemented.
[55] Accordingly, while the remedial
issues must be tailored to meet the specific context of this case,
the objects and provisions
of the Act, the illegality of the work
performed, there is for the reasons articulated above, nothing which
indicates that no form
of protection in terms of section 193 of the
LRA should be available to someone such as appellant who was unfairly
treated within
the context of the provisions of LRA.
[56] When it comes to the question of
remedy, each case will have to be decided in terms of the facts
thereof. Manifestly, not
all persons who are in an employment
relationship which is prohibited by law will enjoy a remedy in terms
of the LRA. In so
deciding, a tribunal or court is engaged with
the weighing of principles; on the one hand the
ex
turpi causa
rule which
prohibits enforcement of illegal contracts and on the other public
policy sourced in the values of the Constitution,
which, in this
context, promotes a society based on freedom, equality and dignity
and hence care, compassion and respect for all
members of the
community. The
ex turpi
causa
rule is, as is
evident from its implementation by the courts, a principle of law for
it guides rather than dictates a single result.
The public policy
considerations mentioned in this judgment have developed from those
set out almost 75 years ago in
Jaibday
v Cassim
but which now find
definitive guidance in the Constitution (
Barkhuizen
v Napier
2007 (7) BCLR 671
(CC)) must be weighed against the principle of
ex
turpi causa
to determine
the outcome.
[57] As Ronald Dworkin wrote in
Taking
Rights Seriously
(1977),
principles do not produce ‘all or nothing’ answers; their
impact depends on the weight to be accorded to each
competing
principles. For this reason, cases involving employment
relationships which are in breach of legislation, such as the
present
dispute, should proceed through the constitutional threshold but not
all will enjoy the defining weight of public policy,
as set out, so
as to justify the granting of a remedy. The weighing process however
concerns questions which must be decided after
the enquiry at the
jurisdictional stage. This dispute concerns access through
threshold which a party, such appellant, must
proceed in order that
it may be properly determined whether any relief should be granted.
That is all that was required for a
determination in the case before
this Court.
[58] At the hearing, the court raised
the question of the consequences for organizational rights of
classifying workers, who are
engaged in illegal work, as employees
for the purposes of the LRA. In particular, the question focused
upon the implication that
a positive finding for appellant, namely
that she is an employee for the purposes of the LRA, might have
regarding trade union
formation; that is a finding that, as
employees, sex workers would be entitled to form and join a trade
union. However, even
if these workers could form or join a trade
union, they could not assert any right to participate in any unlawful
activities through
such a trade union nor could they use the
vehicle of the union to further the commission of a crime. In
short, it is only by
way of lawful activities of a trade union that
employees are entitled to exercise this organizational right. This
conclusion
follows upon the approach adopted in this judgment as to
the clear limitations which flow from the finding that appellant
is
an employee for the purposes of the LRA. In addition, the
Registrar of Labour Relations is vested with a discretion in terms
of the LRA to refuse to register a trade union. Thus, if a trade
union is formed to further the commission of crime, the Registrar
would be entitled to refuse to register it.
[59] Even though appellant is an
employee for the purposes of section 185 of the LRA, this does not
mean that collective agreements
purportedly concluded between
brothels and sex worker unions which amount to the commission of
crime or the furtherance of the
commission of a crime are enforceable
under the LRA nor does it imply that sex worker unions would be
entitled to exercise organisational
rights, including the right to
strike to that end.
[60] On the contrary, although sex
workers would, as employees, be entitled to form and join trade
unions, they would not be entitled
to participate in any activities,
including collective bargaining, that amounted to the furthering of
the commission of crime.
Order
[61] For these reasons therefore, the
following order is made:
The appeal is upheld.
The order of the Labour Court is set
aside and replaced with an order in the following terms
The jurisdiction ruling of the
second respondent of 11 December 2006 is reviewed and set aside.
The CCMA has jurisdiction to
determine the dispute between the parties in the present case.
_____________
DAVIS JA
I agree
____________
ZONDO JP
I agree
_____________
JAPPIE JA
1
As the appellant wants her identity to be protected,
she is cited as ‘Kylie’, a name by which she was
known to the third respondent’s clientele.
2
There was no representation on behalf of any of
the respondents.