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Right to protection in illegal profession

Discussion in 'Jukwaa la Sheria (The Law Forum)' started by ngoshwe, Jun 8, 2010.

  1. ngoshwe

    ngoshwe JF-Expert Member

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    Jun 8, 2010
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    Because someone worked in an illegal profession, this did not mean they had no rights under the law. In a recently reported South African case of
    Kylie v Commission for Conciliation, Mediation and Arbitration and two others,
    The Labour Appeals Court of South Africa noted that 'many sex workers are particularly vulnerable and are exposed to exploitation and vicious abuse' and as part of a class of vulnerable employees, sex workers should have the protection of the Labour Relations Act. Sex workers can now approach the relevant CCMA or Bargaining Council or the Labour Court.

    That arbiter or judge would then have to consider if the sex worker have been treated unfairly and what an appropriate remedy would be. It may not mean re-instatement, but there are other available remedies, such as compensation. The Court decided that the CCMA does have jurisdiction to decide the case.

    The Labour Court held that while the definition of 'employee' in the Labour Relations Act was wide enough to include a sex worker, sex workers were not entitled to protection because of the common law principle that courts 'ought not to sanction or encourage illegal activity'.

    The LAC accepted that the starting point should be the Constitution and that the illegal activity of a sex worker does not as such prevent her from enjoying a range of Constitutional rights. The LAC Court held that the right to fair labour practices does vest in 'everyone' in an employment relationship. The court endorsed the Constitutional Court's comments in another case that sex workers should not be stripped of their right to be treated with dignity by clients, and concluded that this should apply to employers as well. Thus right to fair labour practices applies to sex workers in an employment relationship.

    In relation to the LAC's finding that giving sex workers a remedy would encourage and sanction illegal activity, the LAC said that the common law principle was not absolute or inflexible and the Court has a discretion in relation to its application.

    Download the judgment



    http://www.legalbrief.co.za/article.php?story=20100531094412904
     
  2. Ngambo Ngali

    Ngambo Ngali JF-Expert Member

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    Ngoshwe, mahakama za South africa ziko so much realistict, they do not take law as it is, but law as it ought to be. Kule haki ya kila mtu inalindwa na mahakama kuanzia mvuta bangi mpaka prostitute. Hivyo sishangai kwa hii hukumu, utasikia siku moja hao hao prostitutes wakaenda mahakamani kudai kuwa ujira wanayolipwa na wateja wao ni ndogo kulinganisha na kazi wanayofanya na mahakama inaweza kuwasikiliza na kuwakubalia au wanaweza hata kugoma.

    Hii inawapa mwanya wa kudai haki zaidi, maana sasa wametambuliwa tayari
     
  3. A

    Audax JF-Expert Member

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    As time goes everything is changing-every must be treated equally.Big up south africa.
     
  4. ngoshwe

    ngoshwe JF-Expert Member

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    The legal regime is reversibly changing.

    Practices show that most of our legal sytems reflected the transplanted colonial laws for which we considered ours up to early 80's. However, the whole trend is gradually changing, our laws in developing countries can no longer be stable and effective to protect what by then we thought to be our own cultures, norms, taboos, or customs. For example, a recent pardon granted to the convicted Gays in Malawi by the President Muthalika can demostrate where we are up to with our legal reforms.
     
  5. Ngambo Ngali

    Ngambo Ngali JF-Expert Member

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    Ngoshwe, the law is always a reflection of the ruling classand it will always protect them, no wonder the laws up to the 80"s, reflected the colonial laws. Coming to the present era they are not stable and they will never do because whoever comes to power will legislate what is good for him and his colleaguesand associates, they will never take into account our cultures, norms, taboos or customs.

    The case of Malawi is a good example of course they are several people who are in Prison and are entitled to presedential pardon, however these two guys were pardoned fasta fasta because of pressure za wazungu and nothing else, hapo muluzi was trying to please the wazungus.
     
  6. ngoshwe

    ngoshwe JF-Expert Member

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    i do agree with you mzee...

    See like imposed terrorism legislation, anti-money laundering, and othe criminal legislation ..

    On the muthalika's decision, the western world has to declare a great defeat over our own stance on deciding every thing!!

    </h1>
     
  7. Ngambo Ngali

    Ngambo Ngali JF-Expert Member

    #7
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    I am in entire agreement with you, Hawa ndio viongozi wetu unaona wanavyoichukua International Crimanal Court, because they know that they are potential clients of that court, they really hate it, hizo ulizotaja ni kufurahisha wazungu tu na kulinda maslahi ya wazungu
     
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