The Enforceability of Illegal Employment Contracts according to the Labour Appeal Court Comments on Kylie v CCMA 2011 4 SA 383 (LAC)

  • Kobolo J Selala North West University(Potchefstroom Campus)
Keywords: Employee, jurisdiction, sex workers, dismissal, sex industry, fair labour practice


The Labour Appeal Court in Kylie v CCMA decided the vexed question as to whether or not the CCMA has jurisdiction to resolve a dispute of unfair dismissal involving a sex worker. Both the CCMA and the Labour Court had declined to assume jurisdiction to resolve the dispute on the basis that the employee’s contract of employment was invalid and therefore unenforceable in law. The Labour Appeal Court, on the other hand, overturned the Labour Court’s decision and held that the CCMA has jurisdiction to resolve the dispute, regardless of the fact that sex work is still illegal under the South African law. For this decision, the Labour Appeal Court relied on section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices. According to the Labour Appeal Court the crucial question for determination by the court was if a person in the position of a sex worker enjoyed the full range of constitutional rights including the right to fair labour practices. In the court’s reasoning the word everyone in section 23(1) of the Constitution is a term of general import and conveys precisely what it means. In other words everyone, including a sex worker, has the right to fair labour practices as guaranteed in the Constitution. A critical analysis of the judgment is made in this case note. The correctness of the court’s judgment, particularly insofar as it relates to the approach to and the determination of the issue of jurisdiction, is questioned. It is argued that the Court lost focus on the main issue in the appeal, namely jurisdiction, and instead proceeded to place heavy emphasis on the employee’s constitutional rights. Relying on a handful of cases of the Supreme Court of Appeal and the Constitutional Court, the case note concludes that the approach adopted by the Labour Appeal Court in the determination of the appeal was incorrect - hence its decision. Given the critical importance of the matter, and the attendant implications of the judgment for labour litigation in South Africa, it is hoped that a similar case will soon come to the attention of a superior court and that a definitive pronouncement will be made.




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Register of legislation

Constitution of the Republic of South Africa, 1996
Labour Relations Act 66 of 1995
Sexual Offences Act 23 of 1957

Register of court cases

Chirwa v Transnet Ltd 2008 4 SA 367 (CC)
Denel (Pty) Ltd v Gerber 2005 26 ILJ 1256 (LAC)
Ewing McDonald & Co Ltd v M & M Products Co 1991 1 SA 252 (A)
Hannah v Government of the Republic of Namibia 2000 4 SA 940 (NmLC)
Kylie v CCMA 2008 29 ILJ 1918 (LC)
Kylie v CCMA 2010 4 SA 383 (LAC)
Makhanya v University of Zululand 2010 1 SA 62 (SCA)
Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign as Amici Curiae) 2006 2 SA 311 (CC)
NAPTOSA v Minister of Education, Western Cape 2001 2 SA 112 (C)
NEHAWU v University of Cape Town 2003 24 ILJ 95 (CC)
NUMSA v Bader Bop (Pty) Ltd 2003 3 SA 513 (CC)
S v Jordan 2002 6 SA 642 (CC)
SANDU v Minister of Defence 1999 4 SA 482 (CC)
SANDU v Minister of Defence 2007 5 SA 400 (CC)
Schierhout v Minister of Justice 1926 AD 99
State Information Technology Agency (Pty) Limited v CCMA 2008 29 ILJ 2234 (LAC)

Register of internet resources

Le Roux 2010
Le Roux M 2010 'Not all Sex Workers are Victims' Mail & Guardian 4 June 2010 [date of use 30 Aug 2010]

Kwinika 2010
Kwinika S 2010 'Prostitutes flock to SA ahead of World Cup' Nehanda Radio: Zimbabwe News and Internet Radio Station 13 May 2010 [date of use 31 Aug 2010]

Skoch 2010
Skoch I 2010 'World Cup welcome: a billion condoms and 40,000 sex workers' Global Post 7 May 2010
100505/world-cup-sex-workers/ [date of use 31 Aug 2010]
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