Authored By: Lemukani Pearl Nkuna
- INTRODUCTION
Can a person be denied labour protection simply because their work is unlawful? This question exposes a deep contradiction within South African law. On the other hand, the Constitution guarantees that “everyone,” has the right to fair labour practices. On the other hand, sex work remains criminalised, effectively placing those who perform it outside the reach of legal protection.
This tension is not abstract. It plays out daily in the lives of sex workers, many of whom operate in unsafe conditions with little recourse against exploitation. The law, as it stands, does not eliminate sex work; instead, it strips those involved of meaningful protection.
This article argues that sex workers should not be excluded from labour law protections solely on the basis of criminalisation. It is submitted that such exclusion undermines constitutional values, particularly dignity and equality. While courts have begun to recognise limited protections, the current approach remains inconsistent.
The discussion begins with the legal framework, then considers key judicial developments, before turning to a critical analysis of the effects of criminalisation and the need for reform.
- LEGAL FRAMEWORK: CRIMINALISATION AND LABOUR PROTECTION
Sex work in South Africa is criminalised under the Sexual Offences Act No 23 of 1957[1], which prohibits both the selling and purchasing of sexual services. Because of this, agreements arising from sex work are generally treated as unlawful and unenforceable. In practical terms, this has meant that sex workers have long been excluded from labour protection.
At the same time, the broader labour framework suggests a more inclusive approach. Section 23(1) of the Constitution provides that “everyone has the right to fair labour practices”. The wording is deliberate. It does not distinguish between lawful and unlawful forms of work.
The Labour Relations Act 66 of 1995 (LRA) reinforces this by adopting a wide definition of “employee”. Rather than focusing only on formal contracts, it looks at the actual relationship between the parties. This opens the possibility that even workers in irregular or informal arrangements may fall within its scope.
Yet this possibility is limited by a long-standing legal principle: ex turpi causa non oritur actio. Courts have often relied on this principle to refuse enforcement of claims arising from illegal conduct. The result is an uneasy coexistence between constitutional inclusivity and criminal law exclusion.
- JUDICIAL DEVELOPMENTS: A CAUTIOUS SHIFT
The leading authority is Kylie v. CCMA & Others 2010 (4) SA 383 (LAC). In this case, a sex worker challenged her dismissal before the CCMA. The central issue was whether she qualified as an “employee”under the LRA despite the illegality of her work.
The Labour Appeal Court held that the CCMA had jurisdiction to hear the matter. The court emphasised that constitutional values, particularly dignity, must inform the interpretation of labour legislation. It rejected a rigid reliance on illegality and recognised that denying all protection would leave sex workers vulnerable to exploitation.
In Sidumo v Rustenburg Platinum Mines Ltd 2007 (12) BCLR 1097 (CC), the Constitutional Court confirmed that fairness is central to labour law. Although the case did not concern unlawful work, it reinforces the principle that labour rights must be interpreted in line with constitutional values.
In contrast, S v Jordan &Others 2002 (6) SA 642 (CC), the Constitutional Court upheld the criminalisation of sex work. However, the judgement has been widely criticised for failing to adequately engage with issues of gender inequality and vulnerability. Importantly, while Jordan confirms the illegality of sex work, it does not directly address labour rights, leaving room for interpretation in that domain.
A similar emphasis on personal autonomy appears in Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC), where the Constitutional Court recognised the importance of choosing one’s occupation. Although the case did not involve sex work, it underscores the idea that economic activity is closely tied to dignity and self-determination.
- CRITICAL ANALYSIS: THE LIMITS OF CRIMINALISATION
Despite these developments, the lived reality of sex workers reflects the limits of legal recognition.
One of the most immediate consequences is vulnerability to abuse. Reports have documented instances of harassment by law enforcement officials, including situations where officers exploit their power for personal gain. The criminal status of sex work creates an environment in which such abuses can occur with little accountability[2].
Access to justice is another major concern. In theory, labour protection exist. In practice, sex workers are often unable to rely on Labour Relations Act and Basic Conditions of Employment Act[3].The risk of arrest or stigma discourages many from approaching legal institutions, even in cases of clear exploitation[4].
Health care presents a further challenge[5]. Stigma, combined with the fear of legal consequences, often prevents sex workers from seeking medical assistance. This not only affects individual well-being but also has broader public health implications[6].
Taken together, these factors suggest that criminalisation does not achieve its intended purpose. Rather than eliminating sex work, it pushes it into the shadows, where regulation is weaker and harm is more likely. From a constitutional perspective, this outcome is difficult to justify.
- CONCLUSION
The relationship between sex work and labour law in South Africa remains unsettled. While the Constitution promises protection to “everyone, the continued criminalisation of sex work limits the practical reach of that promise.
The discussion has shown that courts, particularly in Kylie v CCMA, have begun to acknowledge the need for some level of protection. Even so, the current position is fragmented and uncertain, leaving sex workers in a vulnerable position.
It is submitted that a clearer and more principled approach is required. At the very least, labour law should provide basic safeguards against exploitation, regardless of the legality of the work involved. Beyond that, serious consideration should be given to legislative reform, including the possibility of decriminalisation.
Ultimately, the issue is not whether sex work should be encouraged. The real question is whether those who engage in it should be left without protection. In a constitutional democracy built on dignity, and equality, that outcome is increasingly difficult to defend.
- BIBLIOGRAPHY
Case laws
- Kylie v CCMA and Others 2010 (4) SA 383 (LAC).
- Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC).
- S v Jordan & Others 2002 (6) SA 642 (CC).
Journal articles
- Mgbako CA, Bass KG, Bundra E, Jamil M, Keys J and Melkus L “The case for decriminalisation of sex work in South Africa”2013 Georgetown journal of International Law 1423.
- Pauw and Brener “You are just whores, you can’t be raped: barriers to safer sex practices among women street sex workers in Cape Town”2003 Culture, Health and Sexuality.
- Gould “Selling sex in Cape Town: sex work and human trafficking in a South African city”2008 Pretoria: Institute for Security Studies 40.
- Matlala and Odeku (n 1) 18319
Legislation
- Basic Conditions of Employment Act 75 of 1997.
- Constitution of the Republic of South Africa, 1996.
- Labour Relations Act 66 of 1995
- Sexual Offences Act 23 of 1957
[1] Richter, 2013
[2] Asijiki Fact Sheet (2015)
[3] Basic Conditions of Employment Act 75 of 1997.
[4] Gould “Selling sex in Cape Town: sex work and human trafficking in a South African city”2008 Pretoria: Institute for Security Studies 40.
[5] Matlala and Odeku (n 1) 18319
[6] Pauw and Brener “You are just whores, you can’t be raped: barriers to safer sex practices among women street sex workers in Cape Town”2003 Culture, Health and Sexuality
