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 favours decriminalisation of sex work would stand on such a question.
In any event, “Kylie” is appealing the decision by the CCMA, which argued that the employment contract between “Kylie” and the massage parlour where she worked was an illegal contract in terms of 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 were not explicitly excluded from protection by the LRA, this could not mean that they were included either, because it would mean that any person paid by another to undertake an activity that was 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 go 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 to patriarchal views in our society about women’s sexuality.
The criminalisation of sex work unfairly discriminates against women because they 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 women, because it suggests that those making the laws believe that it is acceptable to have a different standard by which the law measures 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 fair labour practice while section 39(2) 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 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 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. Instead, it requires an expansive interpretation of the definition of an 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 assassins, say, who should be excluded from LRA protection because they are infringing on the fundamental rights of third-party victims, sex workers should be protected exactly because they are not harming anyone or infringing on the fundamental rights of anyone in society, and they are 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.