KYLIE V CCMA CASE NUMBER CA 10/08: I THINK ITS NOT ABOUT THE OCCUPATION, ITS ABOUT THE HUMAN

Whoever cast the first stone is without sin. That's what the bible said, the book of ultimate moral standards, and if a book of such spiritual importance says that, then judgement of others and how they express their autonomy to their bodies is an immoral act.

With that being said, from the jump i state that my perspective on the subject we here for is aligned with sex workers being afforded some protections against actions that are contrary to their inherent right to dignity.

It does matter, who you are and what you do, everyone is deserving of respect, deserving to be treated with dignity and deserving of rights( subject to limitations that are reasonable and justifiable in an open and democratic society based on freedom and equality. Exclusion of sex workers from the ambit of section 23 of the constitution and dismissal provisions of the Legal Relations Act is unconstitutional the basis that it deprives such persons of their entitlement to exercising their right to bodily and psychological integrity. Within the content of this right, you find that everyone has a right to security in and control over their body. This right was never mentioned in the Kylie cases which this post sets to discuss. So i will pause this train of thought here and get to it.

This is on the Kylie V CCMA case number 10/08. It involved a lived reality in which the court had to decide as to whether a sex worker is entitled to the protection afforded by section 23 of the Constitution and dismissal provision of the Labour Relations Act. The saga in the matter comes in two parts. The Labour Court saga and the Labour Appeal Court Saga.

KYLIE: PART ONE- LABOUR COURT

Just a quick summary of what happened here. Kylie was a sex worker who worked for some "massage parlour". Her duties extended beyound massaging, they included performing sexal acts, satisfying fetishes and subjecting herself to the sexual desires of the parlour's clients. She worked crazy hours, ceo of a fortune 500 company hours. She had rules and parlour policy she needed to abide by. The case does not specifically mention how she breached the rules, but I suspect it involved saying NO to some shit ( pardon my language) . I don't know, I might be wrong.

As a result of the infraction, the owner of the parlour dismissed because she acted contrary to some rule. Her dismissal in labour law terms was on Misconduct.

She gets dismissed, and feeling aggrieved, she calls on the CCMA to bring her justice. CCMA make a calling that it does have jurisdiction to arbitrate on her matter as her employment involve prohibited activities. Sex in exchange for money type of activities. Due to that nature of her employment, her contract of employment is void and unenforceable as their performance of the contract involves performing acts prohibited by the Sexual Offences Act. In my quick opinion, bullshit call by the CCMA, not because i read the Appeal court ruling on this matter, but because they evaluated their jurisdiction on the basis of the occupation and not the person. I know they did this knowing that an invalid contract does not terminate the employee status of a person. This looked at the employment relationship not as a matter of fact but as a matter of law( now that i got from reading the Labour Appeal Court Judgement).

Feeling like the CCMA made an error in law, she took the matter to the Labour Court. Wherein she brought a Review Application to have the CCMA decisions reviewed and set aside. That leaves us to here , right now, discussing case number CA10/08

1. PART ZERO: CCMA. SO NOT COMMISSION GORDAN

CCMA provided that they cant arbitrate on the issues as the nature of the work Kylie is involved is is prohibited by the Sexual Offences Act. To an extent i understand the Commissioners ruling in the CCMA. Its the rule of law that court can decide on matter wherein their decision will call for the sanction/encouragement of illegal activities. Courts and tribunals cannot be party to enabling offences to be committed.

I have always maintained the belief that the rule of law, in its application, should apply in such a manner that it takes regard to the lived realities of people. Its a lived reality that sex work is an alternative form of making a living, mostly utilised by women. Therefore adverse application of the rule of law to such professional with inadvertently spell adverse impacts on women.

(But this blog is not the dissecting of why its unfairly discriminatory for the law to to exclude such workers from the protection afforded by the law. So again i will pause my train of thought on this right here.)

The Public policy of the community for centuries has failed sex workers, as it has allowed these persons to be subjected to ultimate exploitation and unfair treatment. Not even a shed of protection offered to curtail such attacks on them. But this should not be the case in a century wherein values such as dignity( in the form of advancement of human rights); equality( through non sexism, non racism and equal protection and benefit of the law) and freedom are values our society is mandated to live by as espoused by the Constitution. The law that informs all laws. Therefore, i am opposed to the CCMA ruling. A way better ruling could have been be made, than the one made by the CCMA. Fuck no jurisdiction, this is someone's livelihood, irrespective of how the livelihood is sustained.

2. PART TWO: LABOUR COURT OF MZANSI HELD IN CAPE TOWN

Part two of this is not long because they labour court in hearing the REVIEW APPLICATION, found no fault in the CCMA's lack of ruling on the matter and upheld the stance that Kylie, due to being a sex worker, and engaging in prohibited activity is not deserving of protection of law. The labour court made alot of points which justify the inclusion of sex workers within the scope of protection provided by section 23 and LRA dismissal provision but for some reasons decided otherwise, one of such points is for example:

• The court did not dispute that Kylie was employee, and as such, LRA and s23 of the Constitution should apply. The shit says everyone has the right to fair labour practices. Everyone who provides labour has the right to fair labour practices. LRA gives effect to this right, therefore as long as you are an employee, you matter and this right applies to you. The relevent law made no mention that invalid uneforceable contracts due to them being prohibited by the Sexual Offences Act entails the voiding of the status of employee. You are an employee if you work for someone, subject to their control, getting paid by them and working set hours for them. Therefore as an employee you have the right to the equal protection and benefit of the law. The Labour court ruled that it cannot sanction or encourage illegal activity. Thirty page judgment and the only reason that was basically provided was that dudes could not make a just ruling as such a ruling would encourage an illegal activity. Am pretty sure there was another ruling that could have been, like instead of reinstatement ( which would be the sanctioning of illegal activity, how about she gets compensated) In my opinion the Labour courts judgments was based on the fact that Kylie sells pussy. And usually people tend to judge the things which they are most ashamed of in themselves.

NOTES: The pimp herself said that sex workers are deserving to be treated fairly and protected by the constitution.

The Labour Court ruled to uphold the decision of the CCMA and basically perpetuate the stigma surrounding sex workers and disregard them as humans deserving of protection on account of selling pussy.

The reasoning behind the judgement of the labour court was essentially founded on the question of whether enforcing the right would sanction/encourage illegal activity. The honorable Cheadle AJ answered that question in the affirmative and ruled for upholding the CCMA decision and dismissing the Review Application. The honorable Acting judge Cheadle found that enforceability of a contract does not entail the automatic removal of the employee status. But due to the common law principle which has been entrenched in the Constitution that court ought to not sanction/encourage illegal activity.

3. PART 2: LABOUR APPEAL COURT- THERE'S STILL HOPE

Kylie and the legal professional representing her took this complex question to the Labour Appeal Court. Big shout out to the Womens Legal Centre, with senior counsel W Trengrove being the legal knight to fight in the courtroom arena. Believing in their argument paid off as the Labour Appeal Court produced a decision wherein the Labour court decision was set aside. The Appeal court found that CCMA does indeed have jurisdiction to arbitrate in such matters, the status of employee applies to Kylie, therefore she is entitled to the fruits and protection of the law without being discriminated upon on the grounds of her occupation.

Reasons for the Judgement were as followed:

The appeal court, unlike the labour court, did not disregard the fact that Labour relations act and the Constitution does not specifically exclude Kylie as a beneficiary of the law. According the nature of her employment, she is, as per the Labour relations act section 213, an employee. Her classification as an employee entails she is subject to the application of the Labour Relations act. The definition of 'employee' is broad enough to include person whose contract of employment are invalid/unenforceable on account of being contrary to common law principle entrenched in the constitution. Therefore this means within the context that even though Kylie is engaged in prohibited activities for employment, she is still an employee for the purpose of Labour Relation Act and the Constitution.

With the Court coming to the above stipulated understanding that Kyler is an employee. It further understood and recognised the complexity between balancing the ex turpi cause rule which prohibits contracts calling for illegal performance and consideration of public policy which seeks to promote a society based on dignity, freedom and equality. The court acknowledged that illegal employment will not be accorded remedies to apply automatically to them as provided by the Labour Relations Act. Therefore its essential for courts/tribunals to adjucate on matters of this nature on a case by case basis, wherein each case is weighed on its own facts while considering legal principles and constitutional values.

No order as to whether Kylie must be reinstated or compensated for being unfairly dismissed. I suspecet the court in not wanting to hold the hot potatoes which is this subject matter, it left the remedy issue to be decided by the CCMA by pronouncing that the CCMA does have jurisdiction to determine the solution to the issue this case was adjudicated for . I do wish the court made a determination on the remedy aspect but instead they teased compensation as a remedy but then backed away from that idea by providing that a compensation order would still be a form of encouraging of prohibited activity. I fail to understand how because Kylie would be compensated for the loss she suffered as a result of the unfair dismissal. The loss she suffered was not due to selling pussy. Her loss was suffered was suffered because she was unfairly dismissed and therefore as an employee, deserving the application of the Labour Relations Act to resolving her injustice.

CONCLUSION

Shout out Acting Judge Davis for penning the judgment, beautiufly written and articulated. This judgment although not advocating for the legal reformation of the sex work profession, it is a step towards that. I opened a platform for sex work to approach in the event of being unfair dismissed or being subjected to unfair labour practices in their employment. As employees for the purposes of the Labour Relations Act, they qualify for the protection of the statute and as human beings, they qualify to enjoy a society founded on constitutional values based on freedom, dignity and equality.

This was a 2010 case. I am yet to read further on the sex work jurisprudence and its evolution after this judgment. Another blog post to be written on that front.

 Disclaimer

The views and opinion expressed are those of my own, based on my own experiences and my subjective interpretation of the subject matter. They are not authority nor should they be construed to be authority. Do your research, read further, gain knowledge and do what you want with it. Non of the views expressed herein are legal advice. Always seek a legal practitioner for your legal problems.