By Jade Witten
A sex worker who was dismissed from a brothel for not performing her duties properly has won an important case in the Labour Appeal Court.
Judge President Raymond Zondo, Judge Dennis Davis and Judge Achmat Jappie ruled that just because someone worked in an illegal profession, this did not mean they had no rights under the Labour Relations Act.
The sex worker, named only as "Kylie" in the court papers, worked at Brigitte's Massage Parlour in Bellville for about 10 years before Michelle van Zyl, trading as Brigitte, fired her in April 2006.
The reasons given were that Kylie allegedly failed to do enough bookings, did not manage her time, chose specific clients, refused to perform oral sex and spent time in her room with her boyfriend, who was not a paying customer.
In August 2006, Kylie approached the Commission for Conciliation, Mediation and Arbitration, but Commissioner Bella Goldman ruled that the CCMA did not have jurisdiction over a case of this nature.
Kylie then approached the Labour Court with the help of Sex Worker Education and Advocacy Taskforce (Sweat) and the Women's Legal Centre, but the Labour Court declined to enforce her rights because the nature of her work was illegal.
She tried to approach the Constitutional Court but was directed to the Labour Appeal Court in Joburg, where she was represented by top advocates Wim Trengove SC and Colin Kahanowitz SC.
Yesterday the court set aside the Labour Court's finding, and ruled that the CCMA did have the jurisdiction to handle Kylie's case.
Previous cases in the old Supreme Court had found that sex workers were not protected because their work was illegal. But the judges in the Labour Appeal Court said much of the previous court's jurisprudence was "significantly incongruent with our constitution's commitment to freedom, equality and dignity and its concern to protect the vulnerable, exploited and powerless".
"The constitution reflects the long history of brutal exploitation of the politically weak, economically vulnerable and socially exploited during 300 years of racist and sexist rule. The text represents a majestic assertion of the possibility of the construction of a community of concern, compassion and restitution for such segments of the South African community."
They said that within the South African context, many sex workers were "particularly vulnerable and are exposed to exploitation and vicious abuse... There is, at the very least, a prima facie case that Kylie falls within such a vulnerable category".
The judges referred to the papers before the court in which it was alleged that Kylie worked 14 hours a day, seven days a week, and was subjected to a strict regime of rules and fines, "practices which in the ordinary course were curtailed by the Basic Conditions of Employment Act".
The judges said they could not and did not sanction sex work - that was a matter for the legislature. And it would be against public policy to order the reinstatement of such an employee, but this did not mean she did not have some protection under the Labour Relations Act.
Meanwhile Van Zyl, the owner of Brigitte's Massage Parlour, has broken her silence for the first time in four years.
Yesterday she told Weekend Argus she had not unfairly dismissed Kylie but had asked her to find another place to stay because she was a "disturbance".
"In the 15 years (I've been in this business), I've helped over 250 girls with work, some with accommodation and a number of other problems, and I pride myself on the fact that I could help them," she said.
Media coverage of Kylie's case had had a negative affect on Van Zyl "after all that I did for her".
"How can you take down someone who has helped so many?" she asked.
After the judgment, Kylie's attorney, Jennifer Williams of the Women's Legal Centre, said the application was brought to ensure that the law protected everyone and "especially the most vulnerable".
"We appealed the CCMA's refusal on the grounds that the rights of sex workers cannot be taken away based on the criminality of what they do."
Williams said, "Kylie never fought to be reinstated, but so that the rights of sex workers would be recognised.
"Those employers who exploit sex workers should not escape," Williams said.
The Sweat co-ordinator who has supported Kylie through her case said: "Sweat is thrilled with the outcome of the case and what this means for sex workers countrywide."