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[2008] ZALCCT 14
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Kylie v Commission For Conciliation, Mediation and Arbitration and Others (C52/07) [2008] ZALCCT 14 (31 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C52/07
In
the matter of:
“
KYLIE”
....................................................................................................................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER
BELLA GOLDMAN
N.O
.......................................................
Second
Respondent
MICHELLE
VAN ZYL t/a
BRIGITTES
..................................................................
Third
Respondent
Date
of judgement 31 July 2008
JUDGEMENT
Introduction
1.
The
Applicant
[1]
is a sex worker who
was employed in a massage parlour to perform sexual services for
reward. She was dismissed by the third respondent,
her employer, for
misconduct – she says unfairly. She referred a dispute over the
fairness of the dismissal to the CCMA.
The Commissioner, the second
respondent, ruled that the CCMA did not have jurisdiction to resolve
the dispute. Hence this application
to review.
2.
The
three Respondents do not oppose this application.
[2]
The third respondent’s decision to abide by the decision of
this Court meant that I had only the Applicant’s submissions
before me.
[3]
The matter
raises profoundly difficult issues of law and public policy and this,
I hope, explains to some extent the delay
in handing down the
decision.
3.
There is a fundamental principle in our law
that courts ought not to sanction or encourage illegal activity. One
of the difficulties
that this review has to confront is how this
principle engages with the constitutional right to fair labour
practices and in particular
the statutory right not to be unfairly
dismissed in the LRA. After giving the background and a summary of
the Applicant’s
argument, the outline of the reasoning for my
decision to dismiss the application is as follows:
3.1.
Organised prostitution is prohibited by the
Sexual Offences Act, 23 of 1957.
3.2.
There is fundamental principle in our law
that courts ought not to sanction or encourage illegal activity. The
principle is part
of our common law and is now sourced in the
Constitution.
3.3.
That principle applies also to claims based
on statutory rights. The common law’s elaboration of the
principle in the law
of contract, delict and unjust enrichment is
adapted to meet the specific requirements for assessing the
enforceability of claims
based on statutory rights.
3.4.
Subject to the Constitution, the
application of this approach to the enforceability of statutory
claims renders a sex worker’s
claim to the statutory right to
fair dismissal in the LRA unenforceable.
3.5.
Because the LRA gives effect to the labour
rights under section 23 of the Constitution, it has to be interpreted
in accordance with
those rights. If the scope of those rights
includes sex workers, that constitutional mandate may require a
reading in or a legislative
amendment to the provisions of the LRA.
3.6.
As a matter of interpretation, the scope of
the labour rights in section 23 does not include sex workers and
brothel keepers as
bearers of those rights. Alternatively, as a
matter of limitation, the Sexual Offences Act justifiably limits the
scope of section
23 in excluding sex workers and brothel keepers as
rights holders.
3.7.
Accordingly, the Applicant’s claim
for compensation based on the statutory right to fair dismissal is
unenforceable.
4.
Given the approach taken in argument and
the possibility of misinterpretation, it is important to state what
this decision does
not do. It does not decide that a sex worker is
not an employee for the purposes of the LRA just that neither the
CCMA nor this
Court should enforce the statutory right to a fair
dismissal under the LRA. It does not decide that a sex worker is not
entitled
to the protections under the BCEA, occupational health
legislation, workers’ compensation or unemployment insurance.
Their
entitlement to these rights and benefits has to be determined
on a statute by statute analysis in order to determine whether by
enforcing the right or granting the benefit under the particular
statute the courts or the decision maker will be sanctioning or
encouraging the prohibited activity of organised prostitution. It
also does not decide the issue as to whether the definition of
employee in the LRA applies to those in an employment relationship
without a valid contract.
The background
5.
Kylie
was employed as a sex worker at Brigittes, a massage parlour
belonging to the 3rd Respondent. Her services included pelvic
massage, sexual intercourse, foot fetishes and dominance. She does
not shy away from conceding that some, if not most of her work,
may
be in contravention of two sections of the Sexual Offences Act, 23 of
1957, namely residing in a brothel and committing unlawful
carnal
intercourse or indecent acts with other people for reward.
[4]
6.
She was paid a salary and worked 14 hours a
day and, until just before she was dismissed, 7 days a week. She
lived on the premises
and was subject to a strict regime of rules and
fines. She was dismissed for alleged infractions of that regime.
7.
Kylie considered her dismissal to be unfair
and so referred a dispute to the CCMA for determination. The third
respondent disputes
the claim on the merits but abides the outcome of
this review because she believes that sex workers should be treated
fairly and
accordingly protected by the constitutional and statutory
rights that protect other workers.
8.
At the arbitration hearing to determine the
dispute, the second respondent raised the issue whether the CCMA had
jurisdiction to
arbitrate a dispute between an employer and employee
engaged in prohibited activity.
9.
After granting the parties an opportunity
to make written submissions and taking those submissions into
account, the second respondent
ruled that the CCMA did not have
jurisdiction to arbitrate the dispute. The reasons for her decision
boil down to the following.
Her work was prohibited by the Sexual
Offences Act. Her contract of employment was accordingly invalid.
Section 23 of the Constitution
and the LRA do not apply to workers
who did not have a valid and enforceable contract.
10.
It is this decision that is the subject of
this review.
The Applicant’s
argument
11.
The
Applicant formulated her grounds of review under the
Promotion of
Administrative Justice Act, 2000
in the light of the Supreme Court of
Appeal’s decision in
Rustenberg
Platinum Mines Limited (Rustenberg Section) v CCMA & others
[5]
.
That decision was reversed by the Constitutional Court
[6]
on appeal. The benchmark provision against which a Commissioner’s
decision is to be reviewed is
section 145
of the LRA read with the
general review ground that the decision is one that no reasonable
decision maker could make. Not much
turns on this change other than
the characterisation of the grounds for review.
12.
At the hearing, the detailed grounds listed
in the Applicant’s founding affidavit were distilled into one
ground: the Commissioner
committed a legal error in excluding workers
who did not have a valid and therefore enforceable contract from the
ambit of the
LRA because the LRA defines employees to include anyone
‘who works for another person’ and accordingly the Act
applies
to all employment relationships irrespective of whether they
are underpinned by enforceable contracts or not.
13.
The crux of the argument advanced by Mr
Trengove who appeared on behalf of the Applicant, together with Mr
Kahanovitz and Ms Cowan,
was that both the Constitution and the LRA,
properly interpreted, extended their labour protections to sex
workers despite the
illegality of their work and that the public
policy concerns regarding the enforcement of illegal transactions
ought to be left
to a decision maker’s discretion when the
remedy of a statutory claim is being determined. Simply put, a sex
worker is an
employee under the LRA but an arbitrator faced with an
unfair dismissal of a sex worker may for public policy reasons
decline to
reinstate her and order compensation instead.
14.
The
constitutional argument is that fair labour practice right in section
23(1) applies to everyone, which in the context of another
right is a
term of ‘general import and unrestricted meaning’
[7]
.
The rights to life and to dignity vest in everyone ‘including
criminals convicted of the vilest crimes’.
[8]
Similarly, the right to fair labour practices vests in everyone
including sex workers because a denial of fundamental protections
against exploitation would be a gross denigration of their dignity.
15.
The argument then proceeded to the LRA. It
was contended that the LRA has to be interpreted in light of this
interpretation of section
23 and accordingly it applies to all
workers including sex workers. The Applicant challenged the
Commissioner’s ruling that
the definition of employee in
section 213 of the LRA only included employees under a valid and
enforceable contract on a number
of grounds.
16.
The
first
was the definition. The definition is cast widely and focuses on the
employment relationship as a matter of fact rather than law.
[9]
The form or existence of a valid and enforceable contract is not the
focus of the definition and accordingly the LRA as a matter
of
statutory construction should apply to all workers even sex workers.
17.
The
second
ground is that the statutory definition of employee has historically
been given a wide meaning - wide enough to include former
employees.
[10]
Although
counsel for the Applicant conceded that the case law is not directly
in point, they submit that it demonstrates that the
definition of
employee under the LRA is not confined to employees at common law and
not dependent on the existence of an enforceable
contract of
employment.
18.
The
third
ground
is that the Labour Appeal Court has held that in determining whether
or not a person is an employee for the purposes of the
LRA, a court
should have regard not to the labels but to the realities of the
relationship between the parties. It must look at
the substance
rather than the form of the relationship.
[11]
The Labour Court has gone further and held that a worker who has
entered into an employment relationship with an employer despite
not
concluding a contract between them is an employee for the purposes of
the LRA.
[12]
19.
The
fourth
and
final ground goes to the consequence of the Commissioner’s
decision. If the definition of employee in the LRA admits only
those
employees under a valid and enforceable contract of employment, that
would have the drastic consequence of excluding workers
without such
a contract from the basic protection of a raft of employment laws on
health and safety, basic conditions of employment,
and unemployment
insurance.
20.
It was contended that the LRA did not
require the existence of a valid and enforceable contract in order
for the employee to be
entitled to the protections in the LRA. To the
extent that there may be an alternative construction of the statute,
it was concluded
that the one that will conform to the rights in the
Constitution ought to be preferred.
21.
The approach to the public policy issues
raised by the case was dealt with as follows. Although there is a
common law principle
that courts will not lend their aid to the
enforcement of an illegal contract, there are two reasons why the
principle should not
be applied in respect of sex workers. The
first
is that sex workers have a
constitutional and statutory right to fair labour practices. The
application of a principle of public
policy only arises if the court
has a discretion. The interpretation of section 23 of the
Constitution and the definition of employee
in the LRA admit no such
discretion. It is only when determining the remedy for unfair
dismissal that a discretion arises and only
then do the principles of
public policy apply.
22.
The
second
reason why it was argued that this principle of common law should not
apply is that there are countervailing considerations of
public
policy. Public policy is informed by the Constitution and since the
Constitution has ordained that everyone has the right
to fair labour
practices, this right ‘sets the paradigm of public policy’.
While on the one hand it is has criminalised
prostitution, it has
also given effect to the constitutional guarantee of protection
against unfair labour practices in the LRA.
There is no reason to
subordinate one statute to the other – they operate in
different spheres and pursue different purposes.
The one concerns the
combating of prostitution and the other with promoting social justice
by protecting employees against exploitation
particularly those who
are especially vulnerable to exploitation such as sex workers.
Alternatively, the Applicant argues that
even if a court has to
choose between the two statutes, then the LRA should prevail for the
following reasons. The purpose of the
LRA is to give effect to a
constitutional right whereas the Sexual Offences Act does not.
Section 210 provides that in the event
of any conflict between the
LRA and any other law (except the Constitution or any Act expressly
amending the LRA) the provisions
of the LRA apply. The Declaration on
the Elimination of Discrimination against Women
[13]
condemns the exploitation of women and, in particular, requires
measures to combat the exploitation of prostitution of women.
23.
As
the reasoning for my conclusion makes clear, I do not approach this
case in the manner that the Commissioner
[14]
and the Applicant do by hinging the argument on the definition of
employee. In my view that is to focus on the wrong issue. The
question is not whether the definition of employee is wide enough to
include those without a valid contract of employment but 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.
[15]
It may be that a non-contractual employment relationship falls within
the definition.
[16]
Indeed the
Labour Court has already come to this conclusion in respect of the
LRA.
[17]
24.
There can be little doubt that on the
uncontested facts of this case that the relationship between the
Applicant and the Third Respondent
is an employment relationship. She
is paid remuneration for providing services to the customers of the
Third Respondent’s
business. She works set hours and is subject
to employer control over her workplace conduct. There is no attempt
to disguise the
nature of her employment relationship; nor any
difficulty in determining its true nature. It is not the lack of a
valid contract
that is at stake but the reason for its invalidity and
the effect that that has on a tribunal or court called upon to
enforce a
right under the LRA.
25.
The Applicant’s arguments concerning
the scope of section 23 of the Constitution and public policy are not
accepted for the
reasons that follow.
The prohibition
of prostitution
26.
Brothel
keeping has been prohibited since the turn of the last century. The
current Sexual Offences Act, previously called the ‘Immorality
Act’, was enacted in 1957. Like its predecessors, it makes
brothel keeping a criminal offence.
[18]
The concept of brothel keeping casts a wide net, which, for the
purposes of this decision, includes persons who reside in a brothel
and share in any moneys taken there.
[19]
27.
The
transaction, itself, was not an offence until 1988 when the Act was
amended to include the offence of ‘unlawful carnal
intercourse
… for reward’
[20]
.
That provision has now been incorporated into section 20(1A)(a) by
Act 32 of 2007. Both offences attract a criminal penalty of
imprisonment of no more than 3 years and a fine of no more than R6
000.
[21]
The
constitutional principle of not sanctioning or encouraging illegal
activity
28.
There is a fundamental principle of public
policy that courts, by their actions, ought not to sanction or
encourage illegal activity.
The principle is articulated by Innes CJ
in the
Schierhout v Minister of Justice
as follows:
‘
It
is a fundamental principle of our law that a thing done contrary to
the direct prohibition of the law is void and of no effect’.
[22]
29.
That
principle is reflected in a number of common law rules such as the
ex
turpi causa non oritur actio
rule
[23]
, the
in
pari delicto potior conditio defenditis
rule,
and the unjust enrichment remedy afford by the
condictio
ob turpem vel iniustum causam
.
It is also the source of the refusal to award damages based on
earnings derived from illegal employment or activity.
[24]
30.
It
is a principle that has a long and distinguished progeny. It is
applied by courts in all legal systems based on the rule of law.
[25]
It is a necessary incident of the rule of law in the same way as the
doctrines of legality
[26]
and
rationality
[27]
are. It is one
of the fundamental values on which our democratic republic is
based.
[28]
The importance of
these values is evident from the fact that section 1 is more firmly
entrenched than other provisions of the Constitution.
[29]
As the Constitutional Court states in
Minister
of Home Affairs v NICRO
[30]
the ‘values enunciated in s 1 of the Constitution are of
fundamental importance. They inform and give substance to all the
provisions of the Constitution’.
31.
In order to refine and develop the
principle for the purpose of this decision, it is necessary to
briefly outline the manner in
which each of the common law rules or
principles have been applied by the courts both generally and in
respect of prostitution
in particular.
32.
The
ex
turpi causa
rule
‘prohibits the enforcement of immoral or illegal
contracts’
[31]
.
Accordingly if a contract is illegal, the courts regard the contract
as void and therefore unenforceable. A contract is illegal
if it is
against public policy.
[32]
It
is against public policy to contract contrary to law or morality.
[33]
33.
At
common law, the courts have regarded adultery and commercial sex as
immoral and of such turpitude as to render an agreement concerning
or
linked to that immorality as void and unenforceable.
[34]
This was the case even though adultery was not a crime at the
time.
[35]
The case law however
harks back to an era of stricter sexual morality and it may be that
this approach to contracts associated
with adultery has, like the
crime of adultery, fallen into desuetude.
[36]
The difference between adultery and commercial sex though is that
there are statutory prohibitions, some recently introduced, against
brothel-keeping and commercial sex. These prohibitions may serve to
confirm the common law’s long standing view that commercial
sex
is immoral.
34.
One
now turns to the implications of a statutory prohibition in the
application of the
ex
turpi causa
rule.
The rule only applies if the statute, properly interpreted, intends
to go beyond the prohibition (and any penalty for the
contravention)
and to nullify a contract arising from, or associated with, the
prohibited activity.
[37]
That
is a matter of statutory construction.
[38]
The courts have outlined some of the tools for discovering that
legislative intent – the use of peremptory or directory
language, the purpose of the prohibition and the mischief to be
remedied, the imposition of criminal sanctions, and whether the
enforcement of the contract will bring about the very situation that
the Legislature intended to prevent.
[39]
35.
While
the
ex
turpi causa
rule
prohibits the enforcement of illegal contracts, the
in
pari delicto
rule ‘curtails the right of the delinquent to avoid the
consequences of their performance or part performance of such
contracts’
[40]
–
in other words to sue for the recovery of a performance made under an
illegal transaction. This rule too is based on the
underlying policy
that, subject to the relaxations introduced to that rule by
Jajbhay
v Cassim
,
courts should not sanction or encourage illegality by assisting
parties in undoing the consequences of their illegal acts. Although
the harsh application of the
in
pari delicto
rule has led to its relaxation by the courts, that relaxation has
never compromised the underlying policy of discouraging illegality.
So in
Jajbhay
v Cassim,
the
relaxation is only justified if there are claims of simple justice
between individuals to be taken into account and if ‘public
policy [to discourage illegality] is not forseeably affected by a
grant or a refusal of the relief claimed’
[41]
.
36.
The
principle, as a matter of public policy, has also been put to use to
determine liability for damages arising from loss of income.
[42]
In
Dhlamini
v Protea Assurance Co Ltd
1974
SA 906
(A) at 915 the Court refused to award damages if the delictual
claim for loss of earnings was based on income derived from illegal
activities. In
Booysen
v Shield Insurance Co Ltd
1980 (3) SA 1211
(E), the Court extended this approach to a
dependant’s claims for loss of support.
[43]
Albeit obiter, that Court stated that ‘it is difficult to
conceive that our Courts would allow the husband or child of a
deceased prostitute to recover compensation for loss of support based
on the claim that during her lifetime she maintained then
– and
would have continued to entertain them – on the proceeds of her
prostitution’
[44]
.
37.
It follows from this that the courts have
not enforced contracts that directly or indirectly involve
prostitution or recognise a
claim based on the earnings from
prostitution. It also follows that the common law will not enforce a
contract to perform statutorily
prohibited activity or recognise a
claim based on such activity if it is the intention of the statute to
do so.
Application of
the principle to statutory claims
38.
The common law rules that give effect to
the principle are directed towards the court’s enforcement of
private law claims
based on contract, delict and unjust enrichment.
The question that this case raises though is not the enforcement of a
contractual
right but the enforcement of a statutory right, namely
the right not to be dismissed unfairly and a statutory claim based
for compensation
for the violation of that right.
39.
The principle that the courts should not
sanction or encourage illegal activities must be as applicable to
statutory rights as it
is to private law rights. It is not just a
logical extension of the principle, it is a constitutional imperative
– the principle
is a fundamental constitutional value and all
legislation must be interpreted in accordance with that value. The
test for the application
of the principle that can be distilled from
the common law rules is that the entitlement to a statutory right
should be circumscribed
if (a) the legislative intention of the
statutory prohibition is to go beyond its own penalties; (b) the
person pursuing the right
has knowingly sought to violate the
prohibition; and (c) the grant of the right will sanction or
encourage the prohibited conduct.
40.
Depending on the manner in which the
statutory right is framed, the articulation of the principle with the
statute may differ. If
the grant of the statutory right is dependent
on the exercise of a discretion (either implied or express) then the
decision maker
must first determine whether the statutory prohibition
was intended to deny such a person relief and, if so, then refuse the
relief.
If the right is not subject to a discretion, the application
of the principle will require the statute to be interpreted so as to
exclude such persons as holders of the right either specifically or
by excluding them from the application of the statute as a
whole.
41.
Counsel for the Applicant argued that the
Sexual Offences Act and the LRA should either be considered
separately – each governing
their own terrain – or that
the LRA should trump because it is mandated by a constitutional
right. But this fails to recognise
that the two cannot be considered
separately if the the legal consequences of a contravention of the
prohibition extend beyond
the confines of the statute. It also fails
to recognise that the role of the constitutional rule of law value in
determining which
law trumps. It is not a simple balancing of one
statute against another.
Application of
the principle to the Sexual Offences Act
42.
The
question that next arises is whether the two statutory prohibitions
in the Sexual Offences Act implicated in this case
[45]
were intended to void any transactions associated with the prohibited
activity or deny any statutory remedy based on such a transaction.
Since the Act is silent on the issue (other than in respect of
leases), the determination of this question requires an
interpretation
of the statute with the tools developed by the courts
to do so.
43.
The
mischief that the Act seeks to address is the social ills associated
with commercial sex: violent crime, exploitation, trafficking,
and
the spread of sexually transmitted diseases.
[46]
The Act ‘pursues an important and legitimate constitutional
purpose, namely to outlaw commercial sex’.
[47]
Nearly all open and democratic societies condemn commercial sex.
[48]
That purpose has been given effect to by criminalizing commercial sex
in its organised form (brothels and pimping) and its supply.
44.
The
prohibitions are cast in the form of an offence and are clearly
peremptory. The fact that the contravention of the prohibition
is a
criminal offence is generally an indication that the legislature
intended the transaction itself to be void. It is not automatic
because in some statutes the provision of a criminal penalty may be
an indication that the legislature intended to go no further.
Such a
construction must give way in the light of the object of the Act,
namely to protect the public
[49]
and combat the identified mischief, and the common law’s
approach to prostitution.
45.
The common law regards commercial sex of
such turpitude to render its transactions as void. The legislature is
taken to know the
common law when it legislates. If it intended that
the penalty for participation in a brothel was to be limited to that
provided
in the Act, it would have had to expressly undo the common
law’s approach to prostitution. It did not. The fact that it
did
not do so either in respect of the new crime of prostitution in
section 20(1)(1A) suggests too that the legislature, as recently
as
1988 (when the crime was introduced) and 2007 (when the Act was
amended to expand the crime to clients) did not see any reason
to
alter the common law’s take on the legality of the contracts
that facilitate the prohibited activity.
46.
There is one provision that may be read to
counter this logic. Section 6 states that any contract of letting and
hiring of a house
which subsequently becomes a brothel shall become
null and void. It may be argued that since the common law already
regards such
a contract as void and unenforceable, it was unnecessary
to include such a provision. But the very terms of the provision make
it clear that it departs from the common law in that it only voids
the contract from the date at which the owner became aware that
the
house was being used as a brothel. At common law, lack of knowledge
is no defence to the application of the
ex
turpi causa
rule. At common law the
contract is void
ab initio
.
This provision tempers the harsh application of the
ex
turpi causa
rule in respect of innocent
lessors.
47.
Finally, it is self evident that the
recognition by a court of a contract between a brothel keeper and a
sex worker or between a
sex worker and a client will give legal
sanction to the very situation that the Legislature sought to
prevent.
48.
Accordingly, it is difficult to escape the
conclusion, taking into account the purpose of the legislation, the
language used, and
the common law’s approach to prostitution
that the Legislature intended the general rule to apply in respect of
the Sexual
Offences Act, namely that a contravention of a prohibition
results in nullifying a contract in pursuit of, or associated with,
the prohibition.
49.
If the contract of employment between a
brothel keeper and a sex worker is invalid, then any statutory right
that is linked to or
flows from that contract requires interrogation:
will the recognition of the right sanction or encourage prostitution.
If it does,
then a court or tribunal ought not to recognise the
right. How it does that depends on the specific provision.
50.
Before considering the statutory right not
to be unfairly dismissed and to claim compensation under the LRA, it
is necessary to
consider the ambit of section 23 of the Constitution
and any impact that it may have on this analysis.
The scope of
section 23
51.
The scope of the labour rights in section
23 extends to workers, employers and their respective associations.
The question, here,
is whether that scope includes sex workers, their
employers and the associations to which they belong.
52.
The
scope of a constitutional right is either a matter of interpretation
of the right itself
[50]
or a
matter of limitation arising from a law of general application.
Either way, the answer is the same: sex workers (and brothel
keepers)
are not rights holders for the purposes of section 23.
Scope as a matter of
interpretation
53.
In
order to understand the scope of section 23 it is necessary to
briefly explore the purposes of constitutionalising labour rights.
One of the primary purposes of section 23 is to protect workers and
their associations. The reason for the protection is that workers
are
vulnerable to exploitation. That vulnerability flows from the
structural inequality that characterises employment in a modern
developing economy. The main object of the constitutional right and
the legislation giving effect to that right is to structure
employment in a manner that counteracts the inequality of bargaining
power that is inherent in the employment relationship.
[51]
The right does this by guaranteeing fair labour practices, the right
to form trade unions, engage in collective bargaining and
strike.
54.
The
rights in section 23 do not apply to everyone who works. In
South
African National Defence Force v Minister of Defence and Another
[52]
,
the
Constitutional Court used the kind of employment relationship
contemplated by the common law contract of employment as the
benchmark for determining the kind of working person protected by the
right. It determining whether or not a soldier was a worker
for the
purposes of section 23, the court held that the relationship between
a member of the permanent force and the Defence Force
is ‘akin
to an employee relationship’ and ‘in many respects
mirrors those of people employed under a contract
of employment’.
[53]
It follows then that the rights in section 23 do not apply to persons
who genuinely own and work in their own businesses –
such as
independent contractors, partners, and the self-employed
[54]
.
It does not apply to judges
[55]
or to cabinet ministers for that matter. Not everyone who works is a
worker for the purposes of section 23.
55.
It
is also important to note the reason for the focus on the employment
relationship in the jurisprudence and instruments to which
the Court
was referred. The modern labour market has given rise to a
bewildering array of contractual forms – some for reasons
driven by new forms of work organisation and others to avoid labour
legislation. It is for this reason that ILO Recommendation
198 on
Employment Relationship was introduced – to introduce certainty
as to when an employment relationship exists and to
combat disguised
employment. This is also clear from the Code of Good Practice: Who is
an employee. That Code too is concerned
with promoting clarity and
certainty as to who is an employee for the purposes of labour
legislation and to ensure that those who
work in a subordinate
relation to their employer are not deprived of protection of the
labour laws by contractual arrangements.
[56]
These instruments are not concerned with illegal employment but
rather with the nature of the employment relationship rather than
its
contractual form.
56.
I have already found that the relationship
between the Applicant and the Third Respondent is an employment one.
But for the statutory
prohibition, it would be an enforceable
contract. But it is not the lack of a valid contract that is at stake
in this matter but
the reason for its invalidity. The ILO
Recommendation and the measures introduced by the LRA to comply with
those recommendations
do not address this issue.
57.
If section 23 does not apply to everyone
who works, the question that must now be addressed is: does it apply
to a person who would
otherwise be covered by the right but is
engaged in illegal employment. The scope of section 23 goes to both
who has the right
and to content of the right. In this case it goes
to both: whether sex workers and brothel keepers are rights holders
and whether
the right to fair labour practices applies to prohibited
sex work.
58.
It
is an often repeated refrain that the Constitution is not merely a
‘formal document regulating public power…[it]
also
embodies…an objective, normative value system’
[57]
.
That value system begins with the foundational values in section 1 of
the Constitution, namely dignity (including the advancement
of human
rights), equality (including non sexism and non racism), supremacy of
the constitution, the rule of law and democracy.
As the
Constitutional Court states in
Minister
of Home Affairs v NICRO
[58]
the ‘values enunciated in s 1 of the Constitution are of
fundamental importance. They inform and give substance to all the
provisions of the Constitution’.
59.
Three sets of values are directly
implicated in this analysis: dignity, equality and the rule of law.
The dignity and equality values
are inherently part of the right
being considered. To the extent that the right to fair labour
practices is a more direct expression
of the right to dignity in the
workplace, the dignity value is already part of that equation. To the
extent that the scope of the
right to fair labour practices can
justifiably
exclude those doing illegal work, the equality value has been taken
into account. In other words, the dignity and equality values
are not
values that are assessed independently. They are inextricably part of
the analysis of the impact of the rule of law on
the scope of the
right to fair labour practices.
60.
The
application of the rule of law value does not have the automatic
effect of withholding constitutional rights to those engaged
in
illegal activity. So for example in
Jordan
the Constitutional Court was at pains to point out that the fact that
prostitution is criminalised does not mean that sex workers
are not
entitled to be treated with dignity by the police and by their
clients. It does not mean that they are not entitled to
the rights in
section 35 when arrested and tried for their criminal activity. It
does not mean that they are not entitled to equality
[59]
or access to courts.
61.
On
the other hand, the majority of the Constitutional Court held in
Jordan
that the privacy rights of sex workers do not extend to the
commission of crimes committed in private.
[60]
What is the basis for distinguishing rights that a person engaging in
prohibited activity may assert and those that such a person
may not?
It seems to me that like the approach taken by the common law in
assessing the impact of a statutory prohibition on the
validity of a
contract, the guiding principles should begin with whether the
legislature intended that the legal consequences of
a contravention
extend beyond the confines of the statute. The second is whether by
recognising a claim to a constitutional right
(whether directly or
through legislation giving effect to the right) the courts are
sanctioning or encouraging the prohibited activity.
The third is
whether the denial of the constitutional right will undermine the
right’s deepest purposes.
62.
I have decided that the legislature
intended that the Sexual Offences Act not only penalises the
prohibited activity but intends
that courts will not recognise any
rights or claims arising from that activity.
63.
The second principle is informed by the
fundamental constitutional value of the rule of law: whether in
recognising a claim based
on a constitutional right, the courts will
be sanctioning or encouraging the prohibited activity. That is the
unarticulated premise
on which the majority in
Jordan
refused to recognise that sex workers
had a privacy claim in so far as the pursuit of their profession was
concerned: ‘I do
not accept that a person who commits a crime
in private, the nature of which can only be committed in private, can
necessarily
claim the protection of the privacy clause. What
compounds the difficulty is that the prostitute invites the public
generally to
come and engage in unlawful conduct in private. The law
should be as concerned with crimes that are committed in private as
it
is with crimes that are committed in public.’ On the other
hand, the impact of requiring the police to treat sex workers with
dignity during arrest and detention does not sanction nor encourage
prostitution. The critical question is whether the enforcement
of the
constitutional right to fair labour practices will sanction or
encourage the prohibited activity, in particular the right
to be
compensated for an unfair dismissal.
64.
In section 23(2) and (3) workers and
employers have the right to form and join trade unions and employer
organisations respectively.
Section 23(5) guarantees the right to
engage in collective bargaining. These rights has been given effect
to by the LRA through
the mechanisms of the registration of unions,
the grant of organisational rights, the regulation of union security
agreements,
the binding nature of collective agreements and the
facility to establish sector wide bargaining councils.
65.
The inference is irresistible that the
registration of a trade union of sex workers or an employer’s
organisation of brothel
owners representing members actively and
deliberately contravening the law sanctions those activities. Since
the principal purpose
of trade unions, employer organisations and
bargaining councils is to regulate relations between employers and
employees and in
particular set terms and conditions of employment
the recognition of the rights of a trade union of sex workers and
brothel owners
or an organisation of brothel owners to regulate such
relations is an approach to the commercial sex industry that is
wholly at
odds with the approach adopted by Parliament for this
sphere of economic activity. As the Constitutional Court pointed out
in
Jordan
,
open and democratic societies vary enormously in the manner in which
they characterise and respond to prostitution. Some chose
to prohibit
it and others to regulate it. Parliament opted for prohibition and in
so doing eschewed regulation of the industry
as its preferred choice.
66.
If enforcing a contract between a client
and a sex worker constitutes sanctioning, if not encouraging, the
prohibited activity,
it is difficult not to conclude that the
enforcement of a collective agreement setting terms and conditions of
employment for sex
workers would suffer the same fate. The right to
enforce a collective bargaining agreement clearly falls within the
compass of
the constitutional right to engage in collective
bargaining in section 23(5).
67.
The
guarantee of fair labour practices in section 23(1) is unchartered
territory. The concept of the fair labour practice draws
sustenance
from the jurisprudence developed by the industrial court, the labour
appeal courts and the Appellate Division under
the 1956 LRA. The
collective aspects of that jurisprudence are set out in section 23(2)
to (6) and discussed above. Section 23(1)
deals with the individual
aspects of the right. The unfair labour practices identified in the
LRA are unfair dismissal and ‘unfair
acts that arise between an
employer and an employee involving…unfair conduct by an
employer’ relating to, for example,
promotion, demotion,
probation, training, benefits, suspension and discipline.
[61]
The extent of the judicial or quasi-judicial supervision of the
employment relationship guaranteed under section 23(1) and given
effect to in Chapter X of the LRA gives a sense of the degree that
courts and tribunals will be implicated in regulating an employment
relationship if the right to fair labour practices extends to sex
workers and brothel keepers.
68.
The
central purpose of dismissal legislation is to provide work security
– that is to create conditions for continued employment
and to
prevent unnecessary dismissal because of the social harm that it can
cause. That is why the Code of Good Practice: Dismissal
[62]
makes it clear that employers must apply progressive discipline in
misconduct cases and in poor performance cases, the employer
must
consult, counsel and give the employee the opportunity to improve. In
retrenchments, the employer must consider measures to
avoid dismissal
and the possibility of future re-employment.
[63]
It is also why reinstatement or re-employment is the primary remedy.
Nothing illustrates the conflict between the objective of
the right
to a fair dismissal and the objectives of the Sexual Offences Act
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 the illegal activity
but
may constitute an order on the employer to commit a crime.
[64]
The difficulties are also illustrated by the example given by the
Commissioner. If the CCMA has to arbitrate disputes over the
dismissal of sex workers, it will have to deal with the anomoly that
a sex worker who refuses to obey an instruction sanctioned
by the
purported contract will have the right to refuse to obey that
instruction because it is illegal.
69.
Accordingly, the enforcement of the right
to fair labour practices will lead to the Labour Court and the CCMA
sanctioning or encouraging
organised prostitution in contravention of
the Sexual Offences Act.
70.
The
third principle requires a court to determine whether the withholding
of the labour rights from sex workers will undermine or
frustrate the
core purposes of the right. There is no question that sex workers are
a vulnerable group and subject to exploitation
but so are those
illegally employed as foreign workers
[65]
and child workers. It is a consequence of illegality that they are
exploited. The difference is that the prohibition in respect
of
foreign workers and child workers is a prohibition aimed at who does
the job rather than the job itself. This means that illegally
employed foreign workers and child workers compete with workers in
legal employment for jobs. The withdrawal of labour rights in
these
instances will create an incentive to employ illegal workers in place
of legal ones. The ability to pay less than the established
rates of
pay in respect of foreign and child workers doing the same work as
those in legal employment without the risk of having
to be held to
the established rate of pay undermines the established rate,
threatens the employment and pay security of those in
legal
employment and encourages the employment of illegal workers –
the very thing that the Immigration Act and the prohibitions
on the
employment of children seek to prevent.
71.
The exploitation of sex workers does not
have this consequential effect on the right for those in legal
employment. Sex workers
are exploited – just like many others
who engage in organised crime. To protect them from exploitation will
mean sanctioning
and encouraging activities that the legislature has
constitutionally decided should be prohibited. It is the application
of the
foundational principle to this prohibition that excises sex
workers and brothel owners as holders of section 23 rights.
72.
It follows from this analysis that I am of
the view that the scope of the protection guaranteed by section 23(1)
does not include
those engaged in prohibited work and that means for
so long as Parliament considers organised prostitution to be a crime,
sex workers
and brothel keepers do not fall within its protective
embrace.
73.
If I am wrong on my interpretation of the
scope of section 23 and the arguments raised by the Applicant as to
its universality are
correct, the question (not argued or raised but
necessary to consider) remains as to whether the Sexual Offences Act
infringes
the rights in section 23 and, if so, whether that
infringement constitututes a reasonable and justifiable limitation
for the purposes
of section 36 of the Constitution.
Scope by
limitation
74.
A limitations analysis involves first an
enquiry into whether the law of general application infringes the
right. That is a scope
of right analysis. On the assumption that the
right applies to all workers and employers – legal and illegal
– the
Sexual Offences Act infringes the right because the
legislature intended that it do so. I have held that the legislature
was not
content with limiting the legal consequences of the
prohibition to a criminal penalty. It intended the law to go further
and where
appropriate to limit the rights that might, if enforced,
sanction or encourage the prohibited activity. It follows therefore
that
the statutory prohibitions in the Sexual Offences Act infringes
section 23 by preventing sex workers and brothel keepers from
enforcing
those rights.
75.
Before
engaging in a limitations clause analysis of the Sexual Offences Act,
it is necessary to refer to certain aspects of the
decision in
S
v Jordan & others
[66]
in upholding the constitutionality of the prohibitions in the Sexual
Offences Act.
76.
There were several attacks to the
constitutionality of the Act’s prohibition of brothel-keeping
and prostitution. The grounds
were an unjustifiable violation of the
rights to equality, economic activity, dignity and privacy. The
equality analysis turned
on the relationship between the sex worker
and the client rather than the legality of the business itself. The
majority found that
it was permissible to criminalise the supply side
of the transaction while the minority considered it otherwise. Those
concerns
and their resolution by the Constitutional Court are not
relevant in this matter. But the analysis of the other three grounds
are.
77.
The
Sexual Offences Act was challenged as a violation of the right to
economic activity in the interim Constitution on the grounds
that it
unjustifiably prohibited commercial sex. Unlike section 22 of the
final Constitution, the right to economic activity under
the interim
Constitution had an internal limitation clause that permitted
measures to promote various social goals, one of which
was quality of
life. The measures, however, had to be justifiable in an open and
democratic society based on freedom and equality.
The Constitutional
Court held that the prohibition of commercial sex constituted such a
measure and accordingly did not constitute
an infringement of the
right to economic activity. That reasoning would apply equally under
the final Constitution albeit that
there are differences in the
language of the two rights. This is because the Court’s
reasoning in respect of the internal
limitation clause under the
interim Constitution would be, to a large extent, reproducible under
section 36.
[67]
78.
The most obvious difference is the
intensity of the justification for the limitation - the internal
limitation clause required no
more than a rational connection. This
difference is more apparent than real because the intensity of the
justification under the
final Constitution is affected by the
interplay of the factors listed in section 36(1), in particular the
importance of the purpose
of the limitation, nature of the right and
the extent of the limitation. Since the nature of the right in this
case is inextricably
dependent on legislative recognition, support
and control, the application of proportionality will allow more
extensive limitation.
Accordingly, the Sexual Offences Act is likely
to withstand a constitutional challenge based on the right to
economic activity
under the final Constitution.
79.
The
Act was also challenged on the grounds that it unjustifiably violated
the privacy rights of sex workers. The Constitutional
Court held that
if the Sexual Offences Act infringes the right to privacy
[68]
,
that infringement constitutes a justifiable limitation. The important
factor in determining the intensity of the justification
(and the
corresponding freedom of action on the part of the state to take
measures) is the nature of the right.
80.
The
right to privacy is a continuum of rights ‘starting with a
wholly inviolable inner self, moving to a relatively impervious
sanctum of the home and personal life, and ending in a public realm
where privacy would only remotely be implicated’
[69]
.
The breach, in this case, did not reach into the core of privacy, but
only touched on its penumbra and accordingly ‘less
difficult
for the State to establish that the limitation is justifiable’
[70]
.
81.
The
purpose of the statutory prohibitions in the Sexual Offences Act is
to combat the social ills of violence, drug abuse and child
trafficking.
[71]
Although the
means used - criminal prohibition rather than regulation or
abstention – were contested, the Court held that
this was a
legitimate matter for the legislature to determine. The infringement
of the right to privacy was accordingly held to
be a justifiable
limitation.
82.
The
challenge in respect of dignity was dismissed because it was not the
prohibition that caused the loss of dignity but the nature
of the
work itself
[72]
.
83.
Turning
now to section 23, the question is whether the limitation of this
right is reasonable and justifiable in an open and democratic
society
based on human dignity, equality and freedom taking into account the
factors listed in section 36(1). The Constitutional
Court has already
found that nearly all open and democratic societies condemn
commercial sex and respond in a range of ways to
the phenomenon from
prohibition, through regulation to abstention.
[73]
And that this choice of response is a permissible constitutional
choice.
84.
The first factor to consider is the nature
of the right. The right to fair labour practices operates
horizontally. The legislation
that gives effect to the right
primarily imposes duties on employers (although the extent of some of
those duties is tempered by
the requirement of fairness). Although
there are social and economic benefits for the society as a whole
flowing from the imposition
of these duties, they impose costs on
individual employers. There is therefore an incentive to avoid these
duties and one of the
ways of doing so is to employ illegal labour.
Accordingly, the nature of the right is such that it would require a
more intense
justification for limiting a labour right if the effect
of doing so would undermine the labour rights of others. I have
already
held that the illegality of the employment of sex workers
will not have this effect and accordingly the level of justification
will not have to be as demanding.
85.
The
second factor is the importance of the purpose of the limitation. The
Constitutional Court has already ruled on the purpose
and importance
of the Sexual Offences Act: it is to combat the social ills of
violence, drug abuse and child trafficking.
[74]
The combating of those social ills was sufficiently important to
justify the limitation of the right to freedom of trade, occupation
and profession and the right to privacy. The third factor is the
nature and extent of the limitation. The limitation would exclude
sex
workers and brothel keepers from the category of rights holders.
86.
The fourth factor is the relation between
the limitation and its purpose. The relation is clear. The limitation
is to discourage
organised prostitution by refusing to sanction their
business arrangements and any constitutional or statutory rights that
may
flow from those business arrangements.
87.
The fifth factor is whether there are less
restrictive means to achieve the same purpose. Effectively this is
what the Constitutional
Court in
Jordan
was invited to hold when it was submitted that there were more
appropriate and less restrictive ways of regulating prostitution.
The
Court declined the invitation holding that there was a great variance
in responses by open and democratic societies to the
commercial sex.
This was a constitutionally permissible legislative choice. Although
there may be less restrictive means to achieve
the purpose, the
legislature was permitted to decide on more stringent measures.
88.
Taking these factors into account and
particularly that, given the legislative choice made to outlaw
commercial sex, the limitation
is justifiable because it gives effect
to the fundamental rule of law principle: courts should not by their
actions sanction or
encourage illegal activity.
The right not to
be unfairly dismissed in the LRA
89.
If
sex workers are not constitutionally entitled to the right to fair
labour practices under section 23, there is a strong inference
that
the same will be true for the legislation that gives effect to that
right. It is not determinative because a narrow construction
of
section 23 does not prevent the legislature from extending the right
statutorily to those workers who are not constitutionally
entitled to
it. The wording of the definition of employee in the LRA is certainly
wide enough to encompass those without a valid
contract of
employment. But that does not mean that the right not to be unfairly
dismissed applies to those without a valid contract
of employment.
Just as each statute must be separately interrogated so must each
provision of that statute.
[75]
In other words, it will be for the Registrar of Labour Relations to
decide whether to register a trade union of sex workers.
90.
It is clear from the definition of
dismissal in section 186(1) of the LRA that the existence or prior
existence of a valid contract
of employment is the necessary
condition to found the statutory right to fair dismissal. Section
186(1)(a) states that dismissal
means that ‘the employer has
terminated a contract of employment with or without notice’.
Section 186(b),(e),(d), and
(f) are all premised on the existence of
a contract of employment. Paragraphs (c) and (d) relate to defined
circumstances relating
to the failure to re-engage or re-employ
employees that were in employment. The definition in section 186(1)
is not open ended
because it’s opening phrase –
‘dismissal means that’ - limits the definition to the
specific instances
recorded in paragraphs (a) to (f).
91.
Any
reading of the LRA that included an unenforceable employment
relationship would do violence to the plain meaning of the text.
Quite apart from twisting the plain meaning of section 186(1) out of
all recognisable shape, there are two compelling reasons for
not
engaging in such an enterprise. Firstly, there is no constitutional
imperative to interpret the section to include illegal
employment
relationships given my interpretation of the scope of the right to
fair labour practices. Secondly, the rule of law
principle militates
against any such construction. If a court will not enforce a sex
worker’s contractual right to a fair
procedure before
dismissal
[76]
on grounds that
the contract is void, it is difficult to conclude that the
enforcement of a statutory right to a fair pre-dismissal
procedure
[77]
should not be
treated the same way. If a court will not recognise a sex worker’s
claim for damages for a material breach
of his contract of employment
with a brothel, why should a court or arbitrator recognise his claim
for compensation for unfair
dismissal grounded on that breach.
92.
It is also important to note that, in
section 193, reinstatement is the primary remedy. If a dismissal is
substantively unfair,
a judge or an arbitrator is required to
reinstate the employee subject to four exceptions. The first is that
the employee does
not wish to be reinstated. The second is that
circumstances surrounding the dismissal are such that a continued
employment relationship
would be intolerable. The third is that it is
not reasonably practicable. The fourth is that the dismissal is
unfair only because
the employer did not follow a fair procedure.
Given the manifest purpose of each of these exceptions, it is
difficult to divine
a discretion not to reinstate if the employee
insists on reinstatement. That may be requiring the employer to break
the law or
reinstating a contract that the Courts consider to be
void. And that would be requiring a court or arbitrator to sanction a
transaction
prohibited by law.
Order
93.
Accordingly, the Commissioner ought to have
refused to grant the relief sought by the Applicant because by doing
so the CCMA would
have been sanctioning or encouraging prohibited
commercial sex.
94.
There is no reason to refer the matter back
to the Commissioner and accordingly, the Commissioner’s ruling
is substituted
with the following: ‘The Applicant’s claim
for 12 month’s compensation is refused’.
CHEADLE AJ
31 July 2008
Attorney for
Applicant: Woman’s Legal Centre
Advocates
for Applicant: Advocate W Trengove SC with Advocates C Kahanovitz
and S Cowan
[1]
The
Applicant wants her identity to be protected because of the social
stigma and ostracism associated with prostitution. That
is why she
is cited as Kylie - the name by which she was known to the Third
Respondent’s clientele.
[2]
Although
one can understand the CCMA’s standpoint not to contest its
commissioners’ decisions on the merits of their
everyday
decisions, it should enter into the fray when a review of a decision
affects its jurisdiction and when constitutional
issues are
implicated. It is important for the courts to have the CCMA’s
standpoints on the issues raised particularly
given that it has the
expertise and the experience of dealing with conduct and performance
related dismissals.
[3]
There
should be a rule or a directive requiring parties who are going to
raise important constitutional issues to give proper
notice to the
Judge President so that, if it is necessary to appoint an amicus, an
amicus can be appointed in time to assist
the Court.
[4]
Sections
3(a) and 20(1)(1A) respectively.
[5]
(2006)
27
ILJ
2076
(SCA).
[6]
Sidumo
& others v Rustenberg Platinum Mines Ltd (Rustenberg
Section)
and others 2008 (2) SA 24 (CC).
[7]
Khoza
v Minister of Development
2004(6)
SA 505 (CC) at para 111.
[8]
S
v Makhanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 137
[9]
See
the ILO Recommendation 198 of the Employment Relationship which lays
down guidelines on how member states of the ILO must
identify
employment relationships for purposes of regulation and protection
and for combatting disguised employment relationships.
See also
section 200A of the LRA and the Code of Good Practice: Who is an
Employee (Gn 1774 of 1 December 2006).
[10]
NAAWU
now known as NUMSA v Borg-Warner SA
1994 (3) SA 15 (A).
[11]
Denel
v Gerber
(2005) 26
ILJ
1256 (LAC) at para 93.
[12]
White
v Pan Palladium SA
2005
(6) SA 384 (LC).
[13]
Resolution
2236 (XXII) of United Nations General Assembly of 7 November 1967.
[14]
Even though this is a review, I do not confine myself to the
question of whether the Commissioner’s reasoning was correct
or not. The facts are common cause and the legal principles
were addressed in written and oral argument. There is
no need
to remit the matter even if I believe I reached the conclusion on
other grounds than those relied upon by the CCMA.
[15]
Craig
Bosch and Sarah Christie in their note
Are
sex workers “employees”
(2007) 28
ILJ
804 focus exclusively on whether a sex worker is an employee and
assume that if so that a sex worker is entitled to the rights
under
the LRA without interrogating the implications of the statutory
prohibition on commercial sex.
[16]
I
am of the view that there is no general answer to this question but
specific answers depending on the context in which the term
is used.
It includes ex-employees in respect of certain provisions and only
those under a contract of employment in others –
see section
186 for example of both. Note though that many of the cases cited by
the Applicant and the academic writing hark
back to the 1956 Act.
Although the definition then was similar the 1996 LRA, the
provisions in which it was interpreted in those
cases were
different. It also follows that because the BCEA and the OHSA use
similar definitions the ambit of those definitions
are statute
dependent.
[17]
See
Van Niekerk AJ in
Discovery
Health v CCMA & others
(unreported,
Labour Court, case no. JR 2877/06, 28n March 2008) that holds that
the LRA applies to employees without a valid contract
of employment.
[18]
Section
2.
[19]
Section
3(a) and (c).
[20]
Section
20(1)(aA).
[21]
Section
22(a).
[22]
1926
AD 99
at 109:
[23]
Pottie
v Kotze
1954(3) SA 719 (A): ‘ The usual reason for holding a
prohibited act to be invalid is…that recognition of the act
by the Court will bring about, or give legal sanction to, the very
situation which the Legislature wishes to prevent’(at
726H).
See also
Jajbhay
v Cassim
1937
AD 537
at 542.
[24]
Dhlamini
v Protea Assurance Co Ltd
1974(4)
SA 906.
[25]
Jajbhay
v Cassim
1939
at 540.
[26]
Affordable
Medicines Trust & others v Minister of Health & others
2006
(
3)
SA 247
(CC) at paragraph 49.
[27]
Pharmaceutical
Manufacturers Association of SA & another: In re ex parte
President of RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at paragraph 85.
[28]
Section
1(c) of the Constitution.
[29]
See
section 74(1) of the Constitution and
Minister
of Justice v Ntuli
1979(3)
SA 722 (CC) at paragraph 32.
[30]
2005
(3) SA 290
(CC) at paragraph 21.
[31]
Jajbhay
v Cassim
at
540.
[32]
There
are various sub-classifications but all in the end are
manifestations of public policy. See Smallberger JA in
Sasfin
(Pty) Ltd v Beukes
1989(1)
SA 1 at 8.
[33]
See
Sasfin
v Beukes
at
8.
[34]
See
Christie
The
Law of Contract of South Africa
5ed LexisNexis at 382 and Visser
Unjustified
Enrichment
Juta at 440.
[35]
In
Thornycroft
v Vas
1957
(3) SA 754
the
in
pari delicto
defence
was upheld in respect of an immoral and adulterous relationship even
though the common law of crime of adultery fell into
desuetude with
the decision in
Green
v Fitzgerald & Another
AD
1914 88 .
[36]
See
Visser
Unjustified
Enrichment
Juta at 441.
[37]
Swart
v Swart
1971(1)
SA 819 (A).
[38]
Standard
Bank v Estate van Rhyn
1925 AD 266
at 274. See also Visser at 426.
[39]
Swart
v Swart
1971(1)
SA 819 (A) at 829C – 830C. See generally Christie
The
Law of Contract in South Africa
at 337 – 343 and Visser at 427 – 430. This is also the
approach adopted by Van Niekerk AJ in the Labour Court in
deciding
that the prohibition on the employment of unauthorised workers in
the Immigration Act does not invalidate the contract
–
Discovery
v CCMA & others
(unreported,
Labour Court, Case no. 2877/06, 28 March 2008. See also Craig Bosch
Can
Unauthorised workers be regarded as employees?
,
(2006) 27
ILJ
1342. It is also the basis on which Barney Jordaan in
Influx
Control and Contracts of Employment: A Different View
criticises the decision in
Lende
v Goldberg
(1983) 4
ILJ
271.
[40]
Jajbhay
v Cassim a
t
540-1.
[41]
Jajbhay
v Cassim
at 545.
[42]
As
opposed to liability for damages based on a loss of earning capacity
–see Neethling, Potgieter & Visser,
Law
of Delict
,
(5ed) LexisNexis at 220-1.
[43]
The
approach was approved and applied in
Santam
Insurance Ltd v Ferguson
1985 (4) SA 843 (A).
[44]
At
1217H. Although there is merit in the criticism that the claim for
support is not an aquilian action but one derived from germanic
customary law and that the public policy considerations applied in
aquilian actions do not necessarily apply to this kind of
action
(see
Minister
of Police: Transkei v Xatula
1994
(2) SA 680)
, the point relied on for this decision is the Court’s
evaluation of the turpitude associated with commercial sex.
[45]
Sections
3(a) and 20(1)(1A).
[46]
S
v Jordan and others
[2002] ZACC 22
;
2002 (6) SA 642
at 652 and 677-9.
[47]
Jordan
at
651-2.
[48]
Jordan
at 679
[49]
An
important guide proposed by Christie at page 339.
[50]
This
is illustrated by
Jordan
& others v S & others
2002
(11) BCLR 1117
(CC) in which the Constitutional Court determined
that prostitution and brothel keeping were not protected by section
26 of the
Interim Constitution – see paragraph 26.
[51]
Sidumo
at
paragraph 72.
[52]
1999
(6) BCLR 615 (CC).
[53]
At
paragraph 24.
[54]
This
clearly does not include those work arrangements deliberately
structured under these legal forms in order to avoid the duties
flowing from the labour rights entrenched in the Constitution and
given effect to in legislation.
[55]
Hannah
v Government of the Republic of Namibia
2000
(4) SA 940 (NmLC).
[56]
GN
1774 of 1 December 2006. The same can be said for the presumptions
introduced by section 200A of the LRA.
[57]
Carmichele
v Minister of Safety and Security
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at para 54.
[58]
2005
(3) SA 290
(CC) at paragraph 21.
[59]
Although
the majority did not consider that sex workers were treated
unequally by criminalising only the supply side of the relationship,
there was no doubt that sex workers have as much a claim to equality
as anyone else. Indeed the minority held that their equality
rights
had been infringed by the one-sided prohibition.
[60]
Jordan
at para 28.
[61]
Section
186(2).
[62]
Schedule
8 to the LRA.
[63]
Section
189(2) and (3).
[64]
I
say ‘may’ because the employer is not obliged to require
the employee to provide the services only to pay on tender
of those
services. In other words the employer may avoid the illegality but
it would nevertheless establish an enforceable contract
(or
employment relationship) which is precisely what the legislature has
set its face against.
[65]
I
am aware of the judgement of Van Niekerk AJ in which held that the
employment of foreigners without a valid permit did not have
the
effect of rendering the contract with such a foreigner invalid -
Discovery
Health v CCMA & others
(unreported Labour Court decision under case number JR 2877/06 dated
28 March 2008)
[66]
2002
(6) SA 642.
[67]
See
S
v Lawrence; S v Negal; S v Solberg
1997 (4) SA 1176
(CC) in which the Constitutional Court construed
section 26 in a manner that gave effect to both the internal
limitation clause
and the general limitation clause in section 33 of
the Interim Constitution – para 30.
[68]
The
majority held that the Act did not violate the right to privacy but
that if it did, the violation constituted a justifiable
limitation
of the right. Two members of the Court held that the Act did trench
on the right to privacy but that the limitation
was justifiable.
[69]
Jordan
& others v S & others
at
paragraph 77.
[70]
At
paragraph 86.
[71]
The
majority in
Jordan
found these to be legislative facts – paragaph 24.
[72]
Jordan
at paragraph 74.
[73]
S
v Jordan & others
[2002] ZACC 22
;
2002
(6) SA 642
at paragraphs 90 and 91.
[74]
The
majority in
Jordan
found these to be legislative facts – paragaph 24.
[75]
In
other words if a sex worker pursues a claim of unfair discrimination
under the
Employment Equity Act, 55 of 1998
or a claim for workers
compensation under the Compensation for Occupational Injuries and
Diseases Act, 130 of 1993, those claims
must be assessed under their
respective provisions to determine whether by upholding the claim
the court or tribunal concerned
will be sanctioning or encouraging
the prohibited activity.
[76]
In
Old
Mutual Life Assurance Co South African v Gumbi
[2007]
8 BLLR 699
(SCA), the SCA has constitutionalised the common law
contract of employment by importing the right to a fair hearing into
every
contract of employment.
[77]
The
right to a fair procedure before dismissal is a constituent element
of the right to fair labour practices. It is given effect
to in
sections 181(1)(b), 189 and 189A.