The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The Constitution, it seems, does not apply equally to all South Africans. If you call yourself “Kylie” and you happen to be a sex worker who was fired by your massage parlour boss, you better not expect the constitutional guarantee to a fair labour practice to apply to you.
In the CCMA case of “Kylie” vs Michelle van Zyl (strange how the sex worker’s identity is protected but not the owner of the massage parlour!) Commissioner Bella Goldman found that the CCMA did not have jurisdiction to hear a case of the wrongful dismissal of “Kylie”.
She argued that the CCMA could only deal with cases where a lawful employment contract existed between the parties. Because of the common law principle that illegal contracts were not enforceable, and because sex work is illegal, the law did thus not protect sex workers.
It was argued that the Labour Relations Act had in effect amended the common law because it does not require an employment contract to be legal. However, the Commissioner relied on the maxim of interpretation that legislation does not intend to change the existing law more than necessary and thus said the common law rule was still in place.
Of course, the Commissioner forgot or was not aware that this kind of maxim had been superseded by the über-maxim set out in the Constitution, namely that legislation must also be read to conform to the spirit and purport of the Constitution.
And it so happens that section 23 of the Constitution states that everyone has the right to a fair labour practice – obviously that would include sex workers.
Unless the Act explicitly excludes sex workers or other workers who engage in illegal activities from its ambit, it is clear that given the constitutional protection provided for all workers, sex workers deserve protection like anyone else.
Sex workers are particularly vulnerable to exploitation by powerful and often shady bosses and one would think they deserve protection even more than the rest of us.
Of course, Parliament could change the labour relations Act to explicitly exclude sex workers form its protection and the CC will then have to decide whether this is a justifiable limitation on the right to a fair labour practice guaranteed in section 23.
Sadly, given the moralistic and patriarchal views expressed by some of the CC judges about sex workers its by no means certain such an amendment would be found unconstitutional.
But until such time, the arguments put forward by commissioner Goldman are deeply problematic because she seems so ignorant about the role of the Constitution in legal interpretation. She should be sent on a Con Law 101 refresher course and a weekend community service with Sweat.BACK TO TOP