Friday, March 12, 2010

Will prostitutes have their happy ending? Does labour law apply to prostitutes?

In legalbrief this morning, my eye was drawn to the story of ‘Kylie’. She is a prostitute, working in a massage parlour in town, who is attempting to challenge her dismissal. The Commission for Conciliation, Mediation and Arbitration (CCMA) rejected her challenge on the grounds that her work is illegal – the case was then heard by three judges in the Labour Appeal Court and judgement has been reserved. Perhaps, a caveat before I venture any further, I am no authority on issues of labour law and I do not intend for this piece– by any stretch of the imagination – to be an authoritative statement on the law on this issue, it is more an (educated) opinion-soliciting article.


Kylie’s legal representative, Advocate Trengrove, has said that the Constitution and the Labour Relations Act (hereafter LRA) say that every employee is entitled to protection under the law and that moral judgement should not be a factor considered by the court. Advocate Trengrove then uses an example that is aimed precisely at getting you to make a moral judgement – a hawker’s assistant selling fruit in contravention of a city bylaw can ‘get through the door’ at the CCMA. Both the hawker’s assistant and the prostitutes actions are illegal, however, I would venture a guess that most people would think that somehow the prostitute is less deserving of protection – this would stem from a moral judgement of their profession and is probably not based on any cogent legal reasoning.


I agree with Advocate Trengrove, that ones moral sensibilities should not play a role in deciding the legal issue of whether Kylie is to be afforded the protection that other employees enjoy under South African law. A principled and consistent position must be taken in respect of the laws application to both the illegal hawker’s assistant and the prostitute, but as to what that position is I am undecided (and perhaps am hesitant to express an opinion on without an adequate knowledge of labour law).


I do, however, think that there is a certain legal conundrum involved where a particular activity is criminalised and at the same time those who choose to engage in it are granted the protection of labour law? The consequences of an approach of this kind, if taken to the extreme, are several – take for example the junior drug mule challenging his dismissal by the ringleader – and surely ‘contracts’ of this kind are completely contrary to public policy?
As I said, I am undecided on the issue and this is really just a vehicle for gauging opinion, so please do comment.


What do you think? Will ‘Kylie’ get
her happy ending...?

7 comments:

  1. I think that affording legal protection under labour law in the instance of an illegal activity will potentially send out the wrong message. Especially when you consider something like your drug mule example. That being said, if prostitution were at the very least decriminalized, would this scenario present the same problem? I'm not sure.

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  2. (a) I feel very strongly about the decriminiminiminilisation (sorry it's Friday) of prostitution. Big fail on the part of the CC.
    (b) If criminiminimilisation does not deter people from engaging in certain conduct (as has been proven in the Netherlands in respect of soft drugs - I think - so this is a hypothesis) should the law not protect vulnerable people engaged in that conduct (prostitutes and drug mules alike)? I don't think that that sends any sort of message except that two wrongs don't make a right.

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  3. "Advocate Trengrove, has said that the Constitution and the Labour Relations Act ... say that every employee is entitled to protection under the law and that moral judgement should not be a factor considered by the court"

    Is this even a valid counterargument? Kylie's work is illegal, "finish en klaar". Her employment contract is unenforceable in court, because it is illegal.

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  4. @Galen - the law's relationship to illegal acts is a little more complicated than that. In this case I would say the argument doesn't work. But in some instances, courts will protect a party to an illegal action because to do otherwise would be inequitable. There is some case law to this effect but I need to have a look for it.

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  5. If Kylie was paying tax on her illegal income, shouldn't she then automatically be afforded the legal protection?

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  6. I find this interesting because in this very post you highlight the massive problems with government interfering with private relations.
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