A Labor Law Perspective on the Protection of Persons in a Vulnerable Employment Relationship in South Africa

Denine Maria Smit



Against the backdrop of South Africa’s immense cultural diversity and famously liberal Constitution, the country’s statutes, common law and standing legal practice are continuously being challenged and reshaped. One such instance pertains to the issue of illegal contracts of employment and the legal position of those employed in terms of them. The infamous South African Kylie and Discovery Health court cases have opened the door to much speculation, confusion and debate in this regard, as they have allowed for the possibility that persons employed under an illegal employment contract may claim labor law protection and recognition. This is largely subject to such persons being labeled ‘vulnerable’ in their employment relationship, with the possibility of their human rights being adversely affected. However, as no formal guidelines have yet been established as to what constitutes ‘vulnerability’, a lacuna has been created in the South African legal system. This article examines how South African labor law has changed over time in respect of vulnerable employment relationships, highlights important precedents set along the way, while brief reference is also made to employment vulnerability in other jurisdictions to enable comparison. It is eventually concluded that the current lacuna may be resolved in three possible ways. Firstly, to enable greater uniformity in deciding disputes relating to illegal contracts of employment and vulnerable illegal employment relationships, these matters may be diverted from the country’s Council for Conciliation, Mediation and Arbitration (CCMA) to a to-be-established, separate forum, which can take the form of a tribunal or a specialized court. Secondly, to provide greater legal certainty, the legislature may wish to lay down certain guidelines and rules upon which such specialized tribunal or court should adjudicate these matters. Finally, it is proposed that the statutory definitions of who qualifies as an employee in terms of the country’s Labor Relations and Basic Conditions of Employment acts be expanded or altered.

Keywords: vulnerable employees; illegal contracts of employment; labor law protection; Kylie; Discovery Health


vulnerable employees; illegal contracts of employment; labor law protection; Kylie; Discovery Health

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BBC News. (2013, December 20). Canada Supreme Court strikes down prostitution laws. Retrieved from BBC website: http://www.bbc.com/news/world-us-canada-25468587

Beck, J. (2013). Illegal immigrants can sue for wages for work actually performed. InsideCounsel, October, 52-53.

Christie, R. H. (2001). The Law of Contract. 4th ed. Durban: Butterworths.

Cohen, T. (2012). The relational contract of employment. Acta Juridica, 84-101.

Du Plessis, J. V. & Fouche, M. A. (2012). A Practical Guide to Labour Law. 7th ed. Durban: Lexis Nexis.

Grogan, J. (2009). Workplace Law. 10th ed. Cape Town: Juta & Co.

Grogan, J. (2010). The wages of sin: Labour law in the sex industry. Employment Law Lexis Nexis, 26(4), 1-10.

Henrico, R. & Smit, N. (2010). The Contract of Employment in Labour Law: Obstacle or Panacea? Obiter, 31(2), 247-263.

International Labour Organization (ILO). (2010, January 26). Vulnerable employment and poverty on the rise, Interview with ILO chief of Employment Trends Unit. Retrieved from the International Labour Organization website: http://www.ilo.org/global/about-the-ilo/newsroom/features/WCMS_120470/lang--de/index.htm

International Labour Organization (ILO) Department of Statistics. (2012, June). Statistical update on employment in the informal economy. Retrieved from the ILO Department of Statistics website: http://laborsta.ilo.org/applv8/data/INFORMAL_ECONOMY/2012-06-Statistical% 20update%20-%20v2.pdf

Le Roux, R. (2009). The Meaning of ‘Worker’ and the Road Towards Diversification: Reflecting on Discovery, SITA and “Kylie”. Industrial Law Journal, 30, 49-65.

McLean, M. (2000). Informal collection: a matter of survival amongst the urban vulnerable. Africanus, 30(2), 8-26.

Muswaka, L. (2011). Sex Workers and the Right to Fair Labour Practices: Kylie v Commission for Conciliation Mediation and Arbitration. SA Mercantile Law Journal, 23(3), 533-541.

Norton, D. (2009). In Transit: The position of Illegal Foreign Workers and Emerging Labour Law Jurisprudence. Industrial Law Journal, 30, 66-81.

Republic of South Africa. (1957). Sexual Offences Act 23 of 1957. Pretoria: Government Printers.

Republic of South Africa. (1995). Labor Relations Act 66 of 1995. Pretoria: Government Printers.

Republic of South Africa. (1996). Constitution of the Republic of South Africa, Act 108 of 1996. Pretoria: Government Printers.

Republic of South Africa. (1997). Basic Conditions of Employment Act 75 of 1997. Pretoria: Government Printers.

Republic of South Africa (2007). Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Pretoria: Government Printers.

Rutherford Smith, S. (2010). Locatio Conductio Meretrices: The letting and hiring of sex in South Africa. South African Journal of Public Law, 25, 715-724.

Rutherford Smith, S. (2011). Locatio Conductio Leno: Employment in the Third-Party Prostitution Industry in South Africa. SA Mercantile Law Journal, 23, 235-246.

Salim, R. S. (2009). The consequences of unlawful and prohibited contracts of employment in labour law. (Unpublished LLM dissertation). Nelson Mandela Metropolitan University, Port Elizabeth, South Africa.

Selala, K. J. (2011). The enforceability of illegal employment contracts according to the Labour Appeal Court: comments on Kylie v CCMA 2010 4 SA 383 (LAC). Potchefstroom Electronic Law Journal, 14(2), 207-226.

Small, J. & Grant, E. (2005). Dignity, Discrimination and Context: New Directions in South African and Canadian Human Rights Law. Human Rights Review, 6(2), 25-63.

Smit, D. (2012). “Kylie” and the jurisdiction of the CCMA. (Unpublished PowerPoint presentation). University of the Free State, Bloemfontein, South Africa.

Smit, D. & Du Plessis, V. (2011). ‘Kylie’ and the jurisdiction of the Commission for Conciliation, Mediation and Arbitration. SA Mercantile Law Journal, 23(3), 476-487.

Spanbauer, J. M. (2011). Selling sex: Analyzing the improper use defense to contract enforcement through the lens of Carroll v Beardon. Retrieved from the Social Science Research Network website: http://ssrn.com/abstract=1859600

Van der Merwe, S. W. et al. (2007). Contract General Principles. 3rd ed. Lansdowne: Juta & Co.

Van Jaarsveld, S. R. & Van Eck, B. P. S. (1998). Principles of Labour Law. Durban: Butterworths.

Van Niekerk, A. & Linstrom, K. (2006). Unfair dismissal. South Africa: Siber Ink.

Van Staden, M. & Smit, N. (2010). The regulation of the employment relationship and the re-emergence of the contract of employment. Tydskrif vir die Suid-Afrikaanse Reg, 4, 702-719.

Vettori, S. (2009). The extension of labour legislation protection to illegal immigrants. SA Mercantile Law Journal: Transborder Commercial Law, 21(5), 818-830.

Willie, G. & Millin, P. (1967). Willie and Millin’s Mercantile Law of South Africa. 16th ed. South Africa: Hortors.

DOI: http://dx.doi.org/10.18533/ijbsr.v4i5.496


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