Sex workers should be treated with dignity

SEX workers occupy a precarious position in South African society regarding their legal rights.

SEX workers occupy a precarious position in South African society regarding their legal rights.

The Sexual Offences Act 23 of 1957 criminalises brothel keeping and carnal (sexual) intercourse for reward.

Within this context, the rights of sex workers as employees were vague due to the illegal nature of their trade.

However, in a recent labour appeal court judgment sex workers were provided with some relief.

Though there is no change to the illegality of prostitution, the employee status of sex workers is legally recognised.

In terms of section 23(1) of the Constitution everyone has the right to fair labour practices.

The term "everyone" denotes a generous embrace of the right of all workers or employees to a fair working relationship with their employers.

In this regard, even though the contract between a sex worker and her employer may be illegal, there exists an employment relationship and based on that relationship the sex worker will fall within the scope of the protection offered by the Labour Relations Act (LRA) and section 23(1) of the Constitution.

Consequently, the criminalisation of prostitution does not remove the protection offered by the Constitution and the LRA from a sex worker.

The labour appeal court noted that sex workers form part of a vulnerable class of employees who are easily exploited due to the nature of their work and their social and legal standing.

As such, a sex worker should be entitled to constitutional protection which is intended to protect her dignity from any assault or abuse.

In this respect the court stated that the "courts have to be at their most vigilant to safeguard those employees who are particularly vulnerable to exploitation in that they are inherently economically and socially weaker than their employers".

It is important to note that although sex workers may enjoy the protection of fair labour practices and may approach the Council for Conciliation, Mediation and Arbitration and other such accredited dispute resolution institutions should they have employment related disputes, the full ambit of the remedies provided by the LRA will not be applicable to sex workers due to the illegal nature of their work.

A remedy such as reinstatement arising from an unfair dismissal of an employee would not be appropriate in the circumstances. However, a monetary compensation may be considered more suitable.

This progressive development of the law has confirmed that although prostitution may be illegal, sex workers are generally a vulnerable class of employees who should be treated with dignity by their employers and clients and should be afforded constitutional protection.

l Lavery Modise is deputy chairperson of Eversheds and Nadeem Mahomed a candidate attorney at Eversheds

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