n Annual Survey of South African Law - Bill of Rights jurisprudence
|Article Title||Bill of Rights jurisprudence|
|© Publisher:||Juta Law Publishing|
|Journal||Annual Survey of South African Law|
|Affiliations||1 University of KwaZulu-Natal, 2 KwaZulu-Natal Bar, 3 KwaZulu-Natal Bar and 4 University of the Witwatersrand|
|Publication Date||Jan 2010|
|Pages||98 - 131|
In Kylie v CCMA and Others 2010 (4) SA 383 (LAC) (discussed below under 'Labour Relations') the Labour Appeal Court (per Davis JA) concluded that the constitutional protection of fair labour practices as enshrined in section 23 of the Constitution of the Republic of South Africa, 1996, applies to sex workers despite their engagement in illegal employment.
What of the remedy? To the Labour Appeal Court, their substantive conclusion did not mean that the full range of remedies and rights under the Labour Relations Act 66 of 1995 ('LRA') should necessarily be available in every such case (para ). Instead, said Davis JA, each case should be decided on its own facts. For example, in Kylie, the Labour Appeal Court held it could not order reinstatement of Kylie, as this would be manifestly in violation of the Sexual Offences Act 23 of 1957 (which criminalizes the performance of sexual services for reward). The court also deliberately left open the question whether a sex worker could be awarded monetary compensation for loss of employment (para ), although it mooted that it 'may be ... that such compensation would be inappropriate in a case where the nature of the services rendered by the dismissed employee are illegal' (ibid).
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