Commission for conciliation



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IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)
Case No.: CA10/08

KYLIE Appellant
and
COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First Respondent

COMMISSIONER BELLA GOLDMAN Second Respondent

MICHELLE VAN ZYL t/a BRIGITTE’S Third Respondent
JUDGMENT:

DAVIS JA:

Introduction

[1] The appellant was a sex worker who was employed in a massage parlor to perform various sexual services for a reward.1
[2] On 27 April 2006, appellant was informed that her employment was terminated, apparently without a prior hearing, for a series of reasons which are not essentially relevant to the present dispute. On 14 August 2006 the dispute was referred to arbitration which was set down to be heard on 13 September 2006. Before evidence could be heard, second respondent enquired as to whether first respondent had jurisdiction to hear the matter in the light of the fact that the appellant had been employed as a sex worker and accordingly her employment was unlawful. On 11 December 2006, second respondent handed down a ruling in which she concluded that first respondent did not have jurisdiction to arbitrate on an unfair dismissal in a case of this nature. It was against this ruling that the appellant approached the court a quo on review.
[3] Cheadle AJ held that the definition of employee in section 213 of the Labour Relations Act 66 of 1995 (‘LRA’) was wide enough to include a person whose contract of employment was unenforceable in terms of the common law. However, he held that a sex worker was not entitled to protection against unfair dismissal as provided in terms of section 185 (a) of the LRA because it would be contrary to a common law principle which had become entrenched in the Republic of South Africa Constitution Act 108 of 1996 (‘the Constitution’) that courts ‘ought not to sanction or encourage illegal activity’.
[4] In order to fully analyse the submissions made on behalf of appellant2 by Mr Trengove, who appeared together with Mr Kahanovitz, Ms Cowen and Ms Mji, it is necessary to analyse the precise reasoning employed by Cheadle AJ more comprehensively.
The judgment of the court a quo

[5] As noted, Cheadle AJ defined the essential question as whether ‘as a matter of public policy, courts (and tribunals) by their actions ought to sanction or encourage illegal conduct in the context of statutory and constitutional rights’.
[6] Cheadle AJ then referred to the Sexual Offences Act 23 of 1957 (‘the Act’) which makes brothel keeping a criminal offence and which defines the concept of a brothel to include persons who reside in a brothel and share in any monies taken there. Section 3(a) and (c). In terms of section 20(1) (A) (a) of the Act, unlawful carnal intercourse for reward constitutes a criminal offence which attracts a criminal penalty of imprisonment of no more than three years and a fine of no more than R6000.
[7] On this basis, Cheadle AJ invoked the principle ex turpi causa non oritur actio which ‘prohibits the enforcement of immoral or illegal contracts’. Thus, if a contract is illegal, courts must regard the contract as void and hence unenforceable. In turn, a contract is illegal if it is contrary to public policy and it is against public policy to engage in a contract which is contrary to law or morality. Citing Christie The Law of Contract in South Africa (5ed) at 382, Cheadle AJ noted that courts regarded adultery and commercial sex as immoral and of such turpitude so as to render an agreement concerning or linked to such morality as void and thus unenforceable.
[8] Turning to the implications of a statutory prohibition and to the application of the ex turpi causa rule, Cheadle AJ found that the rule applies, if a statute properly interpreted, intends to nullify a contract arising from or associated with a legally prohibited activity. While the corollary to the ex turpi causa rule, the in pari delicto rule, does, on occasion, relax the former rule, that relaxation does not compromise the underlying policy of discouraging illegality of contractual relationships. As the court stated in Jajbhay v Cassiem 1937 AD 539, the relaxation is only justified if there are claims of simple justice between individuals of which account must be taken and if public policy is ‘not foreseeably affected by a grant or a refusal of the relief claimed’. at 545.
[9] Applying this dictum to the provisions of the Act, Cheadle AJ concluded that the language which was employed in the statute clearly supports the conclusion that a contravention of a prohibition of the Act results in the nullifying of a contract made in pursuit of or which is associated with the prohibition.
[10] For Cheadle AJ the question therefore arose, on the basis of this finding, as to whether, notwithstanding the invalidity of the contractual relationship , section 23 of Constitution affected the conclusion of the court a quo , being a finding which was clearly adverse to the appellant. The question can be phrased thus: Does a constitutional protection of fair labour practices as enshrined in section 23 of the Constitution apply to a person who would, but for an engagement in illegal employment, enjoy the benefits of this constitutional right. That question was answered in the negative by the court a quo, primarily because, were such rights to be granted, a court would undermine a fundamental constitutional value of the rule of law by sanctioning or encouraging legally prohibited activity. In the view of the learned judge in the court a quo, that conclusion was supported by the Constitutional Court in its decision in S v Jordan and others 2002 (6) SA 642 (CC) at para 28 ff.
[11] The court a quo further bolstered its approach by examining the nature of dismissal legislation. In terms of section 193 (2) of the LRA, in the case of an unfair dismissal the primary remedy is reinstatement or reemployment. In the view of Cheadle AJ:

Nothing illustrates the conflict of the objective of the right to a fair dismissal and the objecting of the Sexual Offences Act more than the issue of reinstatement. An order of reinstatement is the primary remedy for an unfair dismissal. Reinstating a person in illegal employment would not only sanction illegal activity but may constitute an order on the employer to commit a crime.”



[12] Cheadle AJ then engaged in an alternative analysis, on the assumption that section 23 of the Constitution does afford constitutional protection to the appellant. He concluded that, in such a case, the Act constituted a justifiable limitation upon the section 23 sourced constitutional rights of appellant, essentially because the limitation ‘gives effect to the fundamental rule of law principle: courts should not by their actions sanction or encourage illegal activity’.
[13] So much for the essential reasoning employed by Cheadle AJ in the court a quo. I turn now to deal with the primary submissions of appellant.
Appellant’s Case

[14] Mr Trengove attacked the reasoning as adopted by Cheadle AJ in the court a quo. In his view, instead of starting with a discussion of public policy as divined from the law of contract, the proper approach was to commence with the Constitution and in particular, whether, in principle, a person such as appellant, enjoyed constitutional rights in general and specifically those rights set out in section 23. Only if the question of the application of the Constitution to this dispute was answered in favour of the appellant, was the court then required to proceed to examine issues relating to the appropriate remedy. In Mr Trengove’s view, it is at this stage that concerns of public policy become applicable.
[15] The question of the application of the Constitution thus becomes the starting point for appellant’s argument. Thereafter, Mr Trengove contended that the LRA must be read so as to implement section 23 of the Constitution, a point reiterated recently by Ngcobo J (as he then was) in Chirwa v Transnet 2008 (4) SA 367 (CC) at para 110:

The objects of the LRA are not just textual aides to be employed where the language is ambiguous. This is apparent from the interpretive injunction in section 3 of the LRA which requires anyone applying the LRA to give effect to its primary objects and the Constitution. The primary objects of the LRA must inform the interpretive process and the provisions of the LRA must be read in the light of its objects. Thus where a provision of the LRA is capable of more than one plausible interpretation, one which advances the objects of the LRA and the other which does not, a court must prefer the one which will effectuate the primary objects of the LRA.”



For this reason therefore, since the present dispute is predicated on the application of the LRA, it is necessary to commence with the source of the LRA, that is to engage in an examination of the application of section 23(1) of the Constitution to the present dispute.




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