By Teboho Mokoena

The previous article briefly outlined the key elements of a valid contract. In order to provide the necessary context to the matter which we are about to examine, I will, for the sake of brevity, cite one of the essential elements.

The law states that the rights, duties, obligations and benefits should be permitted under law. For example, a contract that stipulates that an employee would steal certain items, in exchange for being remunerated is illegal, that renders the contract null and void from the get go. 

The matter we are about to examine, relates to whether one can seek to enforce a contract which, at face value, based on the Constitution, LRA, as well as other legislation, is manifestly illegal and thus unenforceable.

A certain Kylie was employed as a sex worker at Brigittes, a massage parlour. She was, as part of her contract of employment, required to offer pelvic massage, engage in sexual intercourse, offer foot fetishes and a range of other related services. 

Kylie worked, on average, 14 hours a day, seven days a week, for which in return, she was paid a salary. Kylie was subsequently dismissed, among others, for apparently failing to do enough bookings, not managing her time and choosing her clients. She also spent time in her room with her boyfriend, who did not pay for her services. She referred the matter to the CCMA, citing unfair dismissal. 

The CCMA Commissioner, having duly considered the written submissions by both parties, ruled that the commission did not have jurisdiction to arbitrate over the dispute. The rationale behind this decision was that Kylie’s work was prohibited by the Sexual Offences Act, 23 of 1957.

The Act in, in Sections 4 4 Sections 3(a) and 20(1) (1A) respectively. 4 6, which expressly prohibits residing in a brothel and committing unlawful carnal intercourse or indecent acts with other people for reward. Accordingly, her contract of employment was invalid. The commissioner further held that Section 23 of the Constitution and the LRA do not apply to workers whose contracts were invalid and therefore unenforceable.

Kylie then took the matter to the Labour Court, to seek a judicial review of the CCMA determination.

The Labour Court held that because sex work was illegal, the appellant’s employment contract was void and thus unenforceable. The court held that a sex worker was not entitled to protection against unfair dismissal within the meaning of Section 185(a) of the Labour Relations Act (LRA) because to provide such protection would be contrary to the common law principle, incorporated in the Constitution that a court ought not to sanction or encourage illegal activities.

The Court further held that although Section 23 of the Constitution provides that “everyone has the right to fair labour practices,” this right did not extend to persons who are essentially engaged in illegal employment. 

Kylie then lodged an appeal against this ruling to the Labour Appeals Court (LAC).

“We are not fighting for the right to practise sex work, and the right to protection from unfair dismissal,” argued Advocate Trengove, who represented Kylie.

The LAC upheld the appeal, and held that constitutional rights, including the right to fair labour practices, is vested on everyone, even if no formal contract of employment is concluded and even if the work is illegal. Consequently, The LAC court considered that the CCMA had jurisdiction to determine the appellant’s dispute.

The LAC also held that the appellant was to be considered as an employee for the purposes of the LRA and the Constitution. The Court noted that sex workers could also be entitled to form and join trade unions although collective agreements between brothels and sex workers which amount to the commission of a crime would not be enforceable.

The LAC further supported Kylie’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 referred to above. 

On this question, the LAC held that once it is accepted that the constitutional right to fair labour practices vests in ‘everyone’, the Appellant’s submission, to the effect that persons, who engage in services pursuant to an employment relationship such as her are therefore covered by section 23, becomes particularly compelling argument. 

The LAC held that, as sex workers cannot be stripped of the right to be treated with dignity by their clients, it must accordingly follow that, the same protection ought to hold in respect of their relationship namely with their employers. 

The LAC, in its judgment, quoted Professor Rochelle Le Roux who expressed the following point: “[it is] also important to bear in mind the fact that the unfair labour practice jurisdiction was introduced to counter the arbitrariness of 12 lawfulness, in particular, termination by lawful notice. For these reasons, and in absence of an internal limitation clause, it is suggested that labour practices in Section 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.” 

That said, the appeal court did not go as far as holding that unfairly dismissed sex workers could obtain reinstatement orders when they had been unfairly dismissed. It found that an order of reinstatement in favour of a sex worker would manifestly be in violation of the Sexual Offences Act, which criminalises sex work in South Africa.

The LAC also held that compensation for substantive unfairness (i.e. where there was no fair reason to dismiss) would amount to the monetary equivalent of reinstatement for the loss of employment, and it would probably be inappropriate for this to be awarded to the sex worker given that the nature of the services rendered is illegal.

The LAC also went on to state that, circumstances permitting, a person who finds themselves in a position of the Appellant, may still be entitled to monetary compensation if the dismissal was procedurally unfair, because such compensation is for the loss by an employee of his or her right to a fair procedure, rather than compensation for rendering illegal services. Awarding compensation for the infringement of the right to fair procedure would not offend the Sexual Offences Act and as such would be appropriate.

One of the learned and respected jurists, Stuart Harrison, opines that one of the options available to Kylie is to return to the CCMA and seek an award of compensation for procedural unfairness. 

Stuart states that the quantum of this award remains at the discretion of an Arbitrator, but does not rule out the possibility of a 12 months remuneration, the maximum allowable. Heart also makes a rather valid point that brothel owners need not now feel that they cannot dismiss sex workers, in their employ, but like all other employers, they need to ensure that they follow fair procedure in doing so. 

In closing, the LAC set aside the Labour Court ruling. It also set aside the CCMA jurisdictional ruling, effectively stating that the latter has the jurisdiction to arbitrate the matter. Thus, Kylie has the right to refer the matter back to the CCMA.

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