Thursday, 17 Mar 2011
Sex workers are protected by one law but can be prosecuted under another.
After a recent court ruling, sex workers now enjoy protection under the Labour Relations Act. However, they can still be prosecuted under the Sexual Offences Act for plying their trade.
The case that brought about this situation is related to a 2006 incident involving a sex worker referred to as “Kylie” who alleged that she was unfairly dismissed by the owner of the brothel where she worked.
In October last year Judge Dennis Davis of the labour appeal court , citing the constitutional right to fair labour practice, found that the council for conciliation, mediation & arbitration (CCMA) could indeed hear Kylie’s grievance, which led to an undisclosed settlement.
The effect of this ruling is that sex workers are now considered employees by law but do not necessarily enjoy the right to bargain collectively, strike or do anything that would amount to the furthering of the commission of the crime.
The ruling, however, takes SA law closer to legalising the “oldest profession”.
In April 2006, Kylie alleged she was dismissed by her employer, Michelle van Zyl, manager of Bridgette’s, without a prior hearing and subjected to slave- like working conditions. In August she lodged a complaint with the CCMA, which referred the dispute for arbitration to be heard the following month. CCMA commissioner Bella Goldman argued the sex worker was engaged in an illegal profession and the commission had no jurisdiction in the case. In December 2006 Goldman ruled that the CCMA did not have jurisdiction to arbitrate on the case.
In 2008 Kylie went to the labour court , which agreed with the CCMA that the courts should not encourage illegal activity by offering assistance in such disputes.
Last year the Women’s Legal Centre (WLC) took the matter further. It argued before the labour appeal court that the applicant was entitled to fair labour practices in terms of section 23 of the constitution. She also enjoyed protection from unfair dismissal as she was defined under section 213 of the Labour Relations Act as an employee.
In his heads of argument , advocate Wim Trengove said: “It does not matter that her contract of employment was unenforceable or indeed whether she had any contract of employment at all.”
He says the constitutional right of fair labour practices is above the common law which nullifies contracts arising from illegal activity, such as commercial sex.
Judge Davis agreed, citing a previous constitutional court judgment that the right of life and dignity “vests in every person, including criminals convicted of vile crimes”.
WLC attorney Stacey-Leigh Manoek says the Law Reform Commission will release a draft bill on sexual offences in March 2012, which could partially or completely decriminalise prostitution.
“Their work is criminalised but that does not make them criminals,” Manoek says. “We are not sure which way the Law Reform Commission will take, but we need to eliminate systematic abuse.”
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