Analyses: ‘Kylie’ and the Jurisdiction of the Commission for Conciliation, Mediation and Arbitration

• Jurisdiction: South Africa
• Published date: 25 May 2019
• Date: 25 May 2019
• Pages: 476-487
• Author: Denine Smit

‘Kylie’ and the Jurisdiction of the Commission

for Conciliation, Mediation and Arbitration

DENINE SMIT

University of the Free State

VOET DU PLESSIS

University of the Free State

1 Introduction and Background

The resolution of labour disputes is primarily founded on the premises that

the parties to the dispute are an employer and employee respectively, and that

an employment relationship was in existence when the dispute originated.

However, what would the legal position on jurisdiction be if an employment

relationship can indeed be proven, but the applicant’s ‘job’ is criminally

sanctioned by South African law? Would the applicant in such a matter be

protected by the South African labour laws, or would the courts and tribunals

refrain from assuming jurisdiction in order not to advance criminal conduct in

the country, based on the common-law principle of ex turpi causa non oritur

actio (the non-advancement of criminal activity by the courts)?

The judgement of the Labour Appeal Court (‘the LAC’) in ‘Kylie’v CCMA

and others 2010 (4) SA 383 (LAC) signif‌icantly changed the legal position in

South Africa to allow for employees who perform illegitimate work, as in the

case of ‘Kylie’, not only to approach the Commission for Conciliation

Mediation and Arbitration (‘the CCMA’), but also to have a ruling made on

fairness of procedure should they be dismissed. The LAC ordered that

jurisdiction be assumed by the CCMA, even if the particular employment

contract is invalid.

In the matter in question, the CCMA was approached by a sex worker

called ‘Kylie’, who, discontent with her dismissal from ‘work’ (prostitution),

wanted the CCMA to rule in her favour, to conf‌irm that her dismissal had been

unfair. She claimed compensation, and not reinstatement, as relief for her

alleged unfair dismissal. Her quest for fairness eventually led to three cases in

three different fora, and changed the existing law based on the ex turpi causa

rule (the prohibition of the enforcement of illegal contracts), to allow for the

labour law protection of a prostitute – a f‌irst in South African law.

This discussion aims to focus on the CCMA, the Labour Court (‘LC’), as

well as the LAC judgement on jurisdiction in this matter, and explores the

reasoning that led to the three different f‌indings by the aforementioned three

bodies, based on the same facts.

2 The facts

‘Kylie’ had been working as a sex worker until her ‘employer’ dismissed

her in 2006 on allegations of misconduct. The fairness of this dismissal was

476

(2011) 23 SA Merc LJ 476

© Juta and Company (Pty) Ltd