A contract killer being sued for specific performance by the disgruntled housewife, a drug dealer raising exemptio non adimpleti contractus, a pimp being sued for unfairly dismissing one of his ladies of the night. Absolutely absurd. Or is it?

The latter example was exactly what came before the Commission for Conciliation Mediation and Arbitration (“CCMA”). Kylie, a sex worker at a massage parlour in Cape Town alleged that she had been unfairly dismissed as she was not, in the spirit of audi alteram partem, afforded a prior hearing. This case, rather than being absurd and without merit actually raised “profoundly difficult issues of law and public policy” according to Cheadle AJ in the Labour Court’s review of the CCMA ruling.

The CCMA ruled that it did not have jurisdiction to hear such a matter. On review, the Labour Court held that the issue was ‘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.’ Whether the Labour Relations Act 66 of 1995 (“Labour Relations Act”) applied to employees without a valid contract of employment was answered in the affirmative in the unreported case of Discovery Health v CCMA & others. But what if the employment relationship amounted to  criminal activity? The Labour Court held that to find jurisdiction in this matter would be contrary to the common law principle that courts ought not to sanction or encourage illegal activity which has been enshrined in our Constitution in the rule of law.

The case went on to the Labour Appeal Court [Kylie v CCMA 2010 4 SA 383 (LAC)] which surprisingly set aside the finding of the court a quo and found that the CCMA did have jurisdiction to hear such a matter. This was done by way of some ingenious legal maneuvering on the part of Davis JA and it all begins with the Constitution.

Do sex workers have constitutional rights? When put like that the answer appears to be uncontroversial. But what rights in particular? The Court noted that in S v Jordan 2002 (6) SA 642 (CC) the minority observed that prostitutes are not stripped of their right to dignity, a point not contradicted by the majority and one which had been made in S v Makwanyane 1995 (3) SA 391 (CC). Following this the Court stated that at its core Section 23 protects the dignity of those in an employment relationship. It provides that ‘everyone has the right to fair labour practices’. 

The term ‘everyone’ was given a broad interpretation. When dealing with the term ‘employment relationship’ a substance over form approach was taken.  In this way it was found that sex workers are entitled to the right to dignity and the right to fair labour practices. This was the threshold requirement. But was the sex worker in this case entitled to any legal relief?

Davis JA turned to deal with the reasoning of the court a quo which held that courts ought not to sanction illegal activities. This is reflected in the common law rule of ex turpi causa non oritur actio (“no action shall arise from an immoral or illegal act”) and the in pari delicto potior conditio defendentis rule (when of equal guilt the defendant is preferred). This rule is generally used to limit the rights of a party to an illegal transaction to sue for recovery of performance made.

These rules are not inflexible and the latter may be relaxed if there are claims of simple justice as between man and man and it is in accordance with public policy as per Jajbhay v Cassim 1937 AD 539. Davis JA held that public policy is ultimately sourced in the Constitution and it would be wrong to hold that the in pari delictum rule has been so inflexibly entrenched  as to remove a court’s discretion to find in favour of a less guilty party in order to prevent injustice.

But the question of a remedy still lingers. The Labour Relations Act provides that the primary remedy for unfair dismissal is reinstatement. A court could not order the re-instatement of a sex worker as this would amount to an order to commit a crime. A contempt of court order would follow for non- compliance whereas compliance could be met with imprisonment. However, the court or arbitrator does have the discretion to refuse reinstatement if it is not reasonably practical. Davis JA noted that it may be inappropriate to award monetary compensation for the loss of employment but if awarded as a solatium for the loss of an employee’s right to fair procedure it would be independent of the loss of the illegal employment.

The Constitution is central to this judgment. It is the starting point and the deciding factor.  S 7(1) provides that the Bill of Rights enshrines the rights of all people in our country. The Sexual Offences Act 66 of 1957 which criminalizes prostitution does not remove all rights from the offender, only those necessary for its effective implementation. Sex workers retain their right to dignity and, as has been argued, by extension their right to fair labour practice. It is hard not to agree with the reasoning that holds that the sex worker should be afforded constitutional protection. But by allowing these kinds of claims to be brought would courts be sanctioning illegal behaviour? I think not. The answer is more nuanced than that. It is actually the exact opposite. Although the sex worker has engaged in criminal conduct, the focus in this instance should be on the wrong committed against him/her by another. The Court did not sanction prostitution but neither did it sanction the illegal conduct of the employer.

Does this mean that any person in an employment relationship which is prohibited by law will be entitled to a remedy in terms of the Labour Relations Act? Davis JA stated that each case will be decided on its own facts and the enquiry will involve a weighing of principles: courts ought not to sanction illegal activities and that of public policy ultimately sourced in the Constitution. 

Written and prepared by:
Patrick Wainwright, BKM Attorneys

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