Quote of the week

The judgments are replete with the findings of dishonesty and mala fides against Major General Ntlemeza. These were judicial pronouncements. They therefore constitute direct evidence that Major General Ntlemeza lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as more important as that of the National Head of the DPCI, where independence, honesty and integrity are paramount to qualities. Currently no appeal lies against the findings of dishonesty and impropriety made by the Court in the judgments. Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against Lieutenant General Ntlemeza.

Mabuse J
Helen Suzman Foundation and Another v Minister of Police and Others
5 February 2008

Sex workers and the right to a fair labour practice

I wonder what ANC MP George Lekgetho made of weekend reports that a sex worker was challenging the fairness of her dismissal by her employer in the Labour Court. Lekgetho rightly got into serious trouble for his sexist statement last week that prostitution should be legalised for the 2010 World Cup because “that would make it (the tournament) a success, because we hear of many rapes because people don’t have access to them, women”.

So would he have agreed with a decision by the CCMA at the end of 2006 that “Kylie” (as the sex worker was dubbed) could not claim protection from unfair dismissal under the Labour Relations Act and that the CCMA therefore had no jurisdiction to hear the case against Kylie’s employer? It’s not clear where a sexist who nevertheless favour decriminalisation of sex work would stand on such a question.

In any event, “Kylie” is appealing the decision by the CCMA, who argued that the employment contract between “Kylie” and the massage parlour where she worked was an illegal contract in terms of the common law as the work she was required to do was criminalised by the Sexual Offences Act. This meant that the LRA could not apply to her because:

‘Given the status of the common law on the enforceability of illegal contracts be they employment contracts or otherwise (it is trite that the employment contract forms the basis of the employment relationship between the parties) and the fact that the applicant was employed to perform illegal work and did; should the CCMA resolve such disputes it would then place itself in a position where it would be making policy decisions for the legislature.

Furthermore, the CCMA Commissioner argued that although sex workers are not explicitly excluded from protection by the LRA, this cannot mean that they are included either, because it would mean that any person who is paid by another to undertake an activity which is criminalised would be able to access the protection of the LRA. What about an assassin contracted to kill another person and who is then not paid for the job – could such a person come to the CCMA to complain?

I am, of course, not neutral in this debate as I strongly believe in at least the decriminalisation of sex work. This is needed – as the minority of the Constitutional Court pointed out in the Jordan case – because the criminalisation of sex work is closely tied in with patriarchal views in our society about woman’s sexuality.

The criminalisation of sex work unfairly discriminates against woman because woman are mostly those arrested and harassed for offering their sexual services to men who, in turn, are mostly not similarly pursued. This infringes on the human dignity of sex workers and, I would argue, all woman, because it suggests that those making the laws believe that it is acceptable to have a different standard by which the law could measure male and female sexuality.

Besides, this kind of legal marginalisation – based on the moral views of some in our society – should have no place in a Constitutional state based on the respect for diversity and difference.

But even if sex work remains criminalised, there are good constitutional reasons why the CCMA Commissioner got it wrong. Most notably, section 23 of the Constitution guarantees for everyone a right to a fair labour practice while section 39(2) of the Constitution requires any tribunal when it interprets legislation to take into account the “spirit, purport and objects” of the Bill of Rights.

This means that any tribunal called upon to interpret the definition of “employee” in the LRA, is constitutionally required to do so with reference to the section 23 guarantee that everyone is entitled to a fair labour practice. What is paramount here is the Constitution, not the common law.

I would contend that the Commissioner’s reasoning was flawed because it failed to take account of the new constitutional framework within which law must be interpreted. Rather than hiding behind the common law, the Commissioner should have interpreted the LRA in an expansive manner to ensure that sex workers who are exploited by their employers are also protected by the labour law.

The failure by the CCMA Commissioner to do this, suggests a larger failure of commissioners and judicial officers to come to grips with the transformative power of the Constitution. Instead of giving effect to section 39(2), such commissioners and judicial officers often still fetishise the common law and fail to accept that the common law is now subject and subordinate to the Constitution and specifically to the values enshrined in the Bill of Rights.

While it is therefore correct to say that the common law prevents the enforcement of illegal contracts, I would argue that as far as the protection of vulnerable groups such as sex workers are concerned, the Bill of Rights now requires us to jettison this principle of the common law. In stead, it requires an expansive interpretation of the definition of employer in the LRA to include protection for vulnerable groups like sex workers who harm no one when they engage in the illegal activity of prostitution.

Unlike an assassin, say, who should be excluded from LRA protection because he/she is infringing on the fundamental rights of third party victims, a sex worker should be protected exactly because she is not harming anyone or infringing on the fundamental rights of anyone in society and because she is being punished because of the moral prejudices of the majority of South Africans.

This might sound radical to some, but then section 39(2) requires a radical rethink of traditional common law principles because judicial officers must now give effect to the fundamental principle that where at all possible the inherent human dignity of everyone living in South Africa should be respected and protected. This is the kind of transformation that many lawyers (of all races) who are, after all, inherently conservative find scary. But it is the transformation that the Constitution requires of us.

Perhaps it is not the kind of transformation that our sexist ANC MP, George Lekgetho, had in mind either. But maybe, just maybe, he would come to agree with my argument.

2015 Constitutionally Speaking | website created by Idea in a Forest