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COVID-19, an infectious disease broke out in the Hubei province of China spreading across the globe. The spread of this ongoing pandemic has been rapid and consequently many countries have been affected. One of the affected countries is South Africa (SA). Amidst the chaos spread by the virus, the South African government has put measures in place to try and curb the number of infections. Among these measures is the enforcement of a lockdown, which was extended, with only essential workers allowed to work. As a social security measure, government will also be implementing relief through an employment scheme to vulnerable employees. Of interest to this article is the demand by sex workers to be included as part of essential workers as their business has been allegedly affected. Furthermore, the Sex Workers Education and Advocacy Task Force has argued that ‘sex work is also work’, therefore, sex workers should be included in the COVID-19 employment benefit scheme. This is controversial as prostitution is illegal and subject to criminal penalties in SA. Despite its illegality, sex workers do exist in SA. The questions – to be determined in this article – are whether their services are so essential to the extent that they remain open during the lockdown and whether they are so vulnerable to the extent that they need relief and protection from loss of earnings during this period, in light of the fact that sex work is illegal.
Defining essential services
The question whether a service or industry constitutes an essential service is a question that can be answered with reference to s 213 of the Labour Relations Act 66 of 1995 (LRA). The provision defines ‘essential service’ as those services that if interrupted would endanger the life, personal safety and health of the whole or any part of the population. The provision further labels Parliament and the South African Police Service (SAPS) as essential service.
When a service is considered to be an essential service, the employees of that service cannot participate in strike action. Employees working under essential services are obligated to refer collective disputes falling within essential services for conciliation to the Commission for Mediation, Conciliation and Arbitration (CCMA). Apart from limiting constitutional rights, such as the right to strike, the declaration of an industry as an essential service also has its own benefits. During national disasters employees working under essential services continue working, in other words unlike sex workers, self-employed car guards and street vendors receive a guaranteed monthly income.
The rationale behind the special classification of these services is the foreseeable instability and social chaos, which would ensue, if the employees under such services are not authorised to continue to work. Likewise, the consequences on the life and health of the population are at great risk if these employees would be allowed to engage in a protest. However, for employees seeking declaration of their profession to be announced as an essential service, the interest is in the financial benefit or security attached to essential service employees. Put differently, unlike employees working under essential services, employees falling outside this category are on lockdown in the interest of saving the lives, health and ensuring personal safety of the population as a whole.
Additionally, during states of disaster the government usually provides some form of aid to those mostly affected by the state of disaster, including relief to casual workers. These employees can also claim from the unemployment insurance fund. However, the issue arises in the context of illegal workers. The problem with illegal workers is first, the illegality of the services they supply, and secondly, if the government were to issue aid to illegal workers, how would they be identified? Since illegal workers, such as sex workers, are afraid to come forward because they cannot supply their services without committing an offence as the form of service in itself is an offence, it is likely that most of them will not be registered as trade union members. On the other hand, to identify whether a person is a sex worker based on a trade union membership would amount to an unwarranted differentiation.
What constitutes an essential service?
The test to determine whether a service is an essential service was confirmed by the Constitutional Court (CC) in SAPS v POPCRU and Another [2011] 9 BLLR 831 (CC). The CC held that when courts are called to decide on the question, they must follow a restrictive interpretation of ‘essential services’. The court following a narrow interpretation to the concept of essential service held that although SAPS is labelled as an essential service under s 213 of the LRA, the court found that not all SAPS employees are engaged in essential services. It held that only the workers that SAPS had chosen as members in terms of s 29 of the South African Police Service Act 68 of 1995 are covered and thus engaged in essential services. It emphasised the purpose of the legislation and the context as important rules to interpretation. Thus, the fact that employees are supplying a service that falls under the two examples of essential services, Parliament and SAPS, in terms of s 213 does not automatically mean they are engaged in essential services.
If a service is not labelled as an essential service, it can only be an essential service if, when interrupted, would endanger the lives, personal safety, health, of the whole or any part of the population. Put differently, if the lives, personal safety, or health of the population would be placed in danger when the service is removed or interrupted then that service may be declared as an essential service. For example, medical doctors and nurses, if they would be permitted to stay home during a pandemic outbreak there would be a threat to the lives and health of the entire population.
The Essential Services Committee is the statutory body responsible for investigating whether a service or part thereof should be classified as an essential service. The LRA empowers the Essential Services Committee to conduct investigations in various professions to determine whether all or any part of the service offered be declared as essential services. Recently the Essential Services Committee conducted investigations in a number of fields, including health and education. Following these investigations, the pharmaceutical and dispensary services, security services, dispensing medicine to learners at boarding schools, wholesale and supply of cash in SA and the services of road traffic incident management were declared as essential services.
Legality and protection of sex workers
According to the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 any person who unlawfully has carnal intercourse or commits an act of indecency with another person for a reward is guilty of an offence. In essence prostitution in SA is illegal for all purposes, including the buying and selling of sex services. Related activities, such as pimping and brothels are also illegal, although the enforcement of this law is relatively poor. Sex workers in SA are, therefore, generally considered as criminals. This illegality and criminalisation of prostitution can be understood against the background that prostitution itself cannot be separated from many heinous crimes, such as child prostitution, sex trafficking, organised crime and the inhuman treatment of women. South Africa according to reports (Natalie Malek ‘Top 10 facts about Human Trafficking in South Africa’ (www.borgenproject.org, accessed 21-5-2020) and ECPAT ‘Stop sex trafficking of children and young people (www.ecpat.org, accessed 21-5-2020)) is considered as a source, transit and destination for sex trafficking. It is also believed that the high rate of HIV infections in SA are partly the result of the high levels of prostitution. Despite these strong arguments for the criminalisation of prostitution, there are also a number of arguments that it be legalised, however, whether prostitution should be legalised is a question beyond the scope of this article, and at present, it suffices to say prostitution is illegal.
The issue of legality follows a very controversial issue of protection, which is, even though the practice itself is illegal whether sex workers must be protected. This is the issue the government currently has to deal with owing to the COVID-19 outbreak. However, this is not the first time the protection of the rights of sex workers has come up. At present, sex workers are asking the government to include them as essential workers so that they may continue working during the lockdown period, and to be included in the employment scheme as part of relief for workers. This is a matter largely touching on labour law and the right to fair labour practices. In 2006 the courts faced a matter similar to this one.
In Kylie v Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 1600 (LAC), the appellant was a sex worker who alleged to have been unfairly dismissed from a massage parlour where she worked, performing various sexual activities for a reward. She referred her dispute to the CCMA. Prior to arbitration the commissioner held that the CCMA had no jurisdiction in this case because of the nature of the employment involved. In the Labour Court it was held that as the employment in question was illegal, the claim was void and, therefore, unenforceable. The court stated that to provide the appellant with protection under the LRA would be against the common law principle, which forms part of the Constitution that a court must not sanction illegal activity.
On appeal, the Labour Appeal Court held that constitutional rights inclusive of s 23 stating that everyone has the right to fair labour practices are afforded to ‘everyone’ despite a contract being informal or illegal. The court held that Kylie was to be considered an employee under the LRA, as well as the Constitution. The court referred to S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 642 (CC) stating that although the work undertaken by prostitutes devalues the respect the Constitution has for the human body, their illegal activity does not per se prevent them from enjoying a range of constitutional rights. The court, however, found it inappropriate to reinstate Kylie because of the nature of her work. In closing the court expressed that it cannot and does not sanction sex work as this is a matter for the legislature. However, the fact that prostitution is illegal does not destroy all the constitutional protection, which may be enjoyed by someone like Kylie, were they not a sex worker.
The question posed in light of the judgment is whether sex workers in the present situation are in a vulnerable position to attain relief. We submit that as the sex workers are in loss of their livelihood because of the current situation, relief may be awarded.
Conclusion
Having stated that essential services are those that if interrupted would endanger the lives, personal safety and health of the whole or any part of the population, it can be concluded that sex work does not constitute an essential service in South African employment laws. However, faced with s 23 of the Constitution stating that ‘everyone’ has the right to fair labour practices and the definition of employee in the LRA, which does not expressly exclude sex workers, as well as the Kylie case, it can be stated that where sex workers stand at a vulnerable position, they could be afforded protection. We submit that instead of piecemeal declarations of protection to sex workers by the courts, the legislature must address this issue in order to bring about legal certainty.
Koshesayi Madzika LLB LLM Criminal Justice and Labour law (NMU) is a student and Zimbini Mnono LLB (NMU) is a Post Graduate Associate at Nelson Mandela University in Port Elizabeth.
This article was first published in De Rebus in 2020 (June) DR 11.
