Case Comments: Sex Workers and the Right to Fair Labour Practices: Kylie v Commissioner for Conciliation Mediation and Arbitration

• Jurisdiction: South Africa
• Author: Linda Muswaka
• Published date: 25 May 2019
• Pages: 533-541
• Date: 25 May 2019

Sex Workers and the Right to Fair Labour

Practices: Kylie v Commissioner for Conciliation

Mediation and Arbitration

LINDA MUSWAKA

North West University

1 Introduction

In South Africa, sex work is criminalised by section 20(1A)(a)ofthe

Sexual Offences Act 23 of 1957, as amended by the Criminal Law (Sexual

Offences and Related Matters) Amendment Act 32 of 2007. This provision

states that ‘[a]ny person 18 years or older who . . . has unlawful carnal

intercourse, or commits an act of indecency, with any other person for reward

. . . shall be guilty of an offence’. Archaically, section 1 of the Sexual Offences

Act still def‌ines ‘unlawful carnal intercourse’ as ‘carnal intercourse other than

between husband and wife’. The Sexual Offences Act has been amended to

explicitly include penalties for people (the clients) who use the services of sex

workers. The creation of this offence follows the suggestion to this effect in

the minority judgment of S v Jordan (2002 (6) SA 642 (CC) para [43]).

Section 11 of the Criminal Law (Sexual Offences and Related Matters)

Amendment Act states:

‘A person (‘‘A’’)who unlawfully and intentionally engages the services of a person 18 years or

older (‘‘B’’), for f‌inancial or other reward, favour or compensation to (‘‘B’’) or to a third

person (‘‘C’’)—

(a) for the purpose of engaging in a sexual act with ‘‘B’’,irrespective of whether the sexual

act is committed or not; or

(b) by committing a sexual act with ‘‘B’’, is guilty of engaging the sexual services of a

person 18 years or older.’

The Sexual Offences Act and the Criminal Law (Sexual Offences and

Related Matters) Amendment Act accordingly work in tandem to prohibit sex

work.

A fairly recent case that involved important issues pertaining to sex

workers and their right to fair labour practices was Kylie v Commissioner for

Conciliation Mediation and Arbitration and Others 2010 (4) SA 383 (LAC).

The case brings together a number of issues, ranging from the constitutional

protection of human rights, the protection of labour rights, and HIV/AIDS to

the role of the law in enforcing moral or religious values. In this note, I shall

conf‌ine my discussion to the labour-law issues. In particular, I shall examine

the interpretation of the term ‘employee’ and the criminalisation of sex work.

This judgment is considered against this background to determine its potential

impact and inf‌luence on other illegal employees, and, generally, on law

reform pertaining to adult sex work.

533

(2011) 23 SA Merc LJ 533

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